Google

This is a digital copy of a book that was preserved for generations on library shelves before it was carefully scanned by Google as part of a project

to make the world's books discoverable online.

It has survived long enough for the copyright to expire and the book to enter the public domain. A public domain book is one that was never subject

to copyright or whose legal copyright term has expired. Whether a book is in the public domain may vary country to country. Public domain books

are our gateways to the past, representing a wealth of history, culture and knowledge that's often difficult to discover.

Marks, notations and other maiginalia present in the original volume will appear in this file - a reminder of this book's long journey from the

publisher to a library and finally to you.

Usage guidelines

Google is proud to partner with libraries to digitize public domain materials and make them widely accessible. Public domain books belong to the
public and we are merely their custodians. Nevertheless, this work is expensive, so in order to keep providing tliis resource, we liave taken steps to
prevent abuse by commercial parties, including placing technical restrictions on automated querying.
We also ask that you:

+ Make non-commercial use of the files We designed Google Book Search for use by individuals, and we request that you use these files for
personal, non-commercial purposes.

+ Refrain fivm automated querying Do not send automated queries of any sort to Google's system: If you are conducting research on machine
translation, optical character recognition or other areas where access to a large amount of text is helpful, please contact us. We encourage the
use of public domain materials for these purposes and may be able to help.

+ Maintain attributionTht GoogXt "watermark" you see on each file is essential for in forming people about this project and helping them find
additional materials through Google Book Search. Please do not remove it.

+ Keep it legal Whatever your use, remember that you are responsible for ensuring that what you are doing is legal. Do not assume that just
because we believe a book is in the public domain for users in the United States, that the work is also in the public domain for users in other
countries. Whether a book is still in copyright varies from country to country, and we can't offer guidance on whether any specific use of
any specific book is allowed. Please do not assume that a book's appearance in Google Book Search means it can be used in any manner
anywhere in the world. Copyright infringement liabili^ can be quite severe.

About Google Book Search

Google's mission is to organize the world's information and to make it universally accessible and useful. Google Book Search helps readers
discover the world's books while helping authors and publishers reach new audiences. You can search through the full text of this book on the web

at |http: //books .google .com/I

■"■fMsP""™"""!

600039462U

/ {

HISTORICAL HANDBOOKS

EDITED BY

OSCAR BROWNING, M.A.

FELLOW OF king's COLLEGE, CAMBRIDGE; ASSISTANT-MASTER AT

ETON COLLEGE.

HISTORICAL HANDBOOKS.

History of French Literature.

Adapted from the French of M. Demogeot. By Christiana
Bridge.

History of the English Institutions.

-5j/ Philip Vernon Smith, M.A., Barrister at Lav^- Fellow of
King's College, Cambridge.

History of Modern English Law.

ifify Roland Knyvet Wilson, M. A., Barrister at Law; late
Fellow ofKin^s College, Cambridge.

The Supremacy of Athens.

By R. C. Jebb, M.A., Fellow and Tutor of Trinity College,
Cambridge, and Public Orator of the University.

The Roman Revolution.

From B.C. 133 to the Battle of Actium.

By H. F. Pelham, M.A., Fellow and Lecturer of Exeter
College, Oxford.

The Roman Empire.

From A.D. 490 to 800.

By A. M. CuRTEls, M.A., late Fellow of Trinity College, Ox-
ford, and Assistant-Master at Sherborne School.

English History in the XIVth Century.

By Charles H. Pearson, M.A., Fellow of Oriel College, Ox-
ford.

History of the French Revolution.

By the Rev. J. Franck Bright, M.A., late Master of the
Modern School at Marlborough College.

The Reign of George IH.

ByVJ. R. Anson, M.A., Fellow of All Souls College, Oxford,^

The Great Rebellion.

By Oscar Browning, M.A.

The Reign of Louis XL

By F. Willert, M.A., Fellow of Exeter College, Oxford, and
Assistant-Master at Eton College.

HISTORY

OF THE

English Institutions

BY

PHILIP VERNON SMITH, M.A.

BARRISTER-AT-LAW ; FELLOW OF KING'S COLLECB, CAMBRIDGE

RIVINGTONS

1873

RIVINGTONS

IContron Waterloo Place

^rfortr High Street

damfirttige Trinity Street

PREFACE,

The various institutions of which the English Con-
stitution, in its present complex form, is made up,
are capable of being classified, and must, in order to
be profitably studied, be classified under three or
four leading divisions. From one point of view they
are divisible into local and central; from another, into
legislative, judicial, executive or administrative, and
fiscal. Then, again, they may be classified as civil
and ecclesiastical, or as social and political. And the
leading divisions may be subdivided ; as, for instance,
the local into rural and municipal.

In the present volume the attention of the student
will be directed to the origin of our local institutions
on the one hand, and of our central government on
the other, to the various phases of the development
of both, und to the manner in which the latter
gradually superseded and suppressed the former in
their original shape, and then created a new local
machinery to supply the want which their extinction
had occasioned. He will also be called upon to ob-
serve the gradual limitation and sepaTation ixAo ^^\t

vi Preface

four great divisions of the at first undefined func-
tions of government, which were originally exercised
by the same individual or body of individuals, and
still remain theoretically united in the person of the
sovereign ; but which, at least in our central system,
it was found necessary, as the state of society became
more complicated, to vest for all practical purposes
in different hands. He will see how the judicial
element, which was at first the most prominent, be-
came in time subordinated to the legislature ; how
king, nobles, and commons, have from time to time
exercised an exclusive, a preponderating, or a joint
control over the latter, and over the executive or the
administration of affairs; and how the fiscal depart-
ment, which hardly existed in a primitive state of
things, gradually rose to such importance, that it
became the arena of some of the severest struggles
for the personal rights and liberties of Englishmen
and the due distribution of political power. The
close connection which has always existed in this
country between the Church and the State will render
some notice of ecclesiastical affairs inevitable; but
they will be treated of from a political point of view,
and only so far as is necessary to illustrate the civil
condition of the country.

For the purpose of a review of our institutions,
such as that contemplated, it has been found con-
venient to divide its history into siix great periods :—

Preface vii

the first eztemding from the settlement of the Angles and
Sdxons in this island to the Norman Conquest ; the
second, from the Conquest to the end of Edward I's
reign ; the third, terminating with the Reformation ;
and the fourth with the Revolution ; while tlie fifth
will comprise the interval between that event and the
Reform Act of 1832 ; and the sixth and last will em-
brace the subsequent forty years. Each chapter is
divided into sections numbered so as to correspond unth
the periods Just mentioned. By this means the student
will have the option of either obtaining an indepen-
dent and continuous view of the particular institu-
tions which form the subjects of those chapters, or
of combining the contemporaneous history of all or
any of them, in connection with any of the given
periods, by reading together the different sections
which bear the same number.

The work is further divided into three parts. The
first of these treats of the primitive institutions out
of which our polity has sprung, and their develop-
ment in the political and social condition of the
people, and in our forms of local government. The
second part contains an account of the persons and
bodies in whom the central authority has, under our
constitution, been from time to time vested ; and in
the third is traced the mode in which the various
branches of government — the legislative, judicial,
executive, and fiscal functions — havebeeiiA\^VcSJc>\5L\fc^

viii Preface

among these persons and bodies and have been exer-
cised by them.

The omission of all notice of the law of treason,
and of other matters more or less akin to the subject
of the work, has been due to a desire to compress the
volume within the smallest possible limits.

A glossary or explanation of some of the technical
words, the meaning of which does not appear from
the text, particularly of those occurring in reference
to the pre-Norman period, is given in the Index.
Words so explained are for the most part printed in
the text in italics. As regards the period just men-
tioned, I have adopted the modem spelling of the
Teutonic proper names, and have avoided the use of
the term Anglo-Saxon, preferring the name of Eng-
lish, which our ancestors in that age themselves
employed. Whenever it has been necessary to dis-
tinguish the time before the Norman Conquest from
the succeeding periods of our history, it has been
done by designating the former as the pre-Norman,
Teutonic, or early English period.

It has frequently been found convenient to refer
to dates by the year of the current reign. In such
cases the chronological table at the end of the
volume will indicate the corresponding year of
the Christian era. When the name of a sovereign
has been used to mark a date, it has been in most
cases abbreviated. Acts of Parliament are referred

Preface ix

to in the usual manner by the year of the reign and
chapter, but the references to them are accom-
modated to the Eevised Edition of the Statutes now
in course of publication by authority.

It is hardly necessary to state that the materials
for this volume have been in great part derived from
the larger works which treat of the English constitu-
tion.^ The present book will fail of one of its prin-
cipal objects if it does not lead the student to seek
further information for himself from those more
ample sources. To assist him in doing so, a list is
given of some of the standard books on the different
periods of our constitutional history. Should he
desire to extend his researches further, he will find
in these books references to other authorities from
which more detailed information can be obtained.

A list is also given of certain abbreviations in
common use, which it has been found convenient to
employ in the present volume.

^ For the statements in chaps, vi. and ix. respecting the king's
council and its share in the executive, the author is also much
indebted to Mr A. V. Dicey's Essay on the Privy Council, which
obtained the Arnold Prize at Oxford in 1860.

4 Stone Buildings, Lincoln's Inn,
Septerriber, 1873.

CONTENTS.

PART I.
ductal antf ILncal Sebelopmmt o{ t{)e Conittttutton^

CHAPTER /.

ORIGIN OF THE ENGLISH INSTITUTIONS.

Sources of our Institutions — Early Teutonic Institutions — Feu-
dalism ...... 1-4

CHAPTER //.

THE PEOPLE.

1. Classes of the People — Slavery — Defence of the Realm. 2. Feu-
dalism — Villenage — Aliens — Barons or Peers — Purveyance and
Pre-emption — Forest Laws — Clergy — Defence of the Realm —
Magna Carta — Charter of the Forest. 3. Peers — Decay of
Feudalism — ^Villenage — Liberty of the Subject — Restraint on
Religious Opinions — Restriction on Printing — Aliens — Defence
of the Realm — Impressment for the Navy. 4. Villenage and
Slavery — Extinction of Feudalism — BiUeting — Abolition of
Feudal Courts — Religious Penalties and Disabilities — Liberty
of the Subject — Monopolies and Patents — Restrictions on the
Press — Control over the Post — Aliens — Defence of the Realm
— ^Army and Navy. 6. Slavery — Religious Disabilities — Mar-
riage Law— Roman Catholics — Progress of Toleration — Liberty
of the Subject— General Warrants — Revenue Laws — Debtors
—Political Rights— The Six Acts— Liberty of the Press-
Control over the Post — Aliens — Defence of the Realm — Stand-
ing Army— Militia. 6. Extension of Freedom— Religious Dis-
abilities—Political Agitation— The Press— Libel— Control over
the Post — Aliens — ^Reserve Forces — Navy . . V-^^

xii Contents

CHAPTER III.
LOCAL GOVERNMENT.

1 . Local Institutions — Early Local Divisions — Tithings — Townships
— Hundreds — Courts-leet — Shire-moots — Ealdonnen — Muni-
cipal Government — Encroachments of the Central Authority.
2. Effects of the Conquest — Counties Palatine — Franchises —
Control of the Crown — Decline of the old Courts — The Charters
— Coroners — Sheriffs — High Constables — Borough Charters —
Special Jurisdictions. 3. Sheriffs — Parish Constables — Justices
of the Peace — Custos Rotulorum — Power of the Central Autho-
rity — Municipal Government. 4. Local Rates — Justices of the
Peace — Highways — Poor Law — Decline of old Institutions.
6. County Rates — Lunatic Asylums — Highways — Poor Law —
Local Courts — Municipal Government — Vestries — Preserva-
tion of the Peace. 6. Local Courts — Constables — Justices of
the Peace — Municipal Government — Poor Law — Highways —
Public Health— Metropolis— Education . . 69-124

PART II.
ConHtttuentH of tl^e Centval ^ut|)0):tt$«

CHAPTER IV.

THE KING.

1. Origin of Royalty — Pre-Norman Kings. 2. Early Norman
Kings. 3. Growth of the Hereditary Principle — Disposition
of the Crown by Parliament. 4. Successors of Henry VIII —
The Stuart Monarchs. 5. Acts of Settlement. 6. Present
Succession . . •. . . . 125-135

CHAPTER V.

PARLIAMENT.
I. The Witenaoemot, Great Council and Parliament.

1. Witenagemot. 2. Great Council — Representation — The Clergy.
3. Parliament — Meeting of Parliament — Privilege — Freedom
of Debate. 4. Meeting of Parliament — Irregular Assemblies —
Privilege — Punishment of Members — Publication of Debates.

5. Meeting of Parliament — Privilege — Privilege of Debate.

6. Presence of Strangers — Publication of Proceedings — Privi-
l^e . . • • .136 153

Contents xiii

II. The HorsE of Lobds.

3. Members — Number of Peers — Chancellor. 4. Status of Peers —
Protests and Proxies. 5. Increase of Peerage — Creation of
Peers. 6. Spiritual Peers— Life Peerages — Proxies — Number
of Peers ...... 153-169

III. The House of Commons.
3. Early Composition — Imperfect Representation. 4. Members —
New Boroughs. 5. Members — Exclusion — Elections — Acts of
Union — Representation. 6. Members — Exclusion — Repre-
sentation ...... 159-175

CHAPTER VL

THE KINGS COUNCIL.

1. Pre-Norman Period. 2. Concilium Ordinarium. 8. Origin of
Privy Council. 4. The Council under the Tudors and
Stuarts. 5. The Council since the Revolution. 6. Com-
mittees of the Council .... 175-180

PART III.
Cmtral dobepitnent«

CHAPTER VII.
LEGISLATION.

1. Pre-Norman Legislation. 2. Early Norman Legislation —
Early Parliamentary Legislation. 8. Growth of Power of
Parliament — Bills — Legislation by King in Council — Sus-
pending and Dispensing Powers of the King — Ecclesiastical
Legislation. 4. Limitation of the King's Powers — Passing of
Bills — Ecclesiastical Legislation. 5. Bill of Rights — Abuse
of Power by House of Commons — Royal Assent — Classifica-
tion of Acts. 6. Power of House of Commons — Delegation
of Legislative Functions — Simplified Form of Legisla-
tion ...... 181-197

CHAPTER VIII.
JUDICATURE.

1. Judicial power of King — Procedure. 2. Jurisdiction of King
— Severance of Common Law Courts — J\inadic\.\OTi ^A ^SVvmv.-
ceUor, kc—Jttsticea in Eyre — ^Eccleslastic«il Owxi\a— "^xq-

xiv Contents

cedure — Hue and Cry — English Common Law. 3. Jurisdiction
of Courts — Trial by Jury. 4. Ecclesiastical Courts — Star
Chamber — Courts of Law and Equity — Parliament — House of
Lords — Judges — Juries. 5. Bill of Rights — Judges — Juries —
Parliament — Impeachment. 6. Privy Council — Central Cri-
minal Court — Probate and Divorce Couri; — Parliament — Con-
tempt — Supreme Court of Judicature . . 197-232

CHAPTER IX.
THE EXECUTIVE.

1. Power of the King — Control of the Witan. 2. Power of the
King — Officers of State — Advice of the Great Council — Magna
Carta. 3. Regencies — Control of Parliament — Power of
Council — Privy Council — Growing Power of Commoners.
4. Ecclesiastical Supremacy — Power of the Crown in Civil
Matters — Control of Parliament — Cabinet Council — Political
Parties. 6. The Ministry — Control of Parliament — Increased
Power of Executive — Personal Influence of the Sovereign —
Regencies — Substitution for Royal Sign-Manual. 6. Personal
Influence of the Sovereign — Ministers — Growth of Executive
Power— Military Forces .... 232-264

CHAPTER X,
TAXATION.

1. Early JEnglish Finance. 2. Feudal Sources of Revenue —
Crowns Lands — Imposition and Collection of Taxes — Magna
Charta — Control of the Great Council. 3. Control of Parlia-
ment — Taxation of the Clergy — Relative Power of the two
Houses — Subsidies — Increase of Taxation — Loans and Bene-
volences. 4. Reigns of Elizabeth and James I. — Post-Office
— ^Reign of Charles I. — Reign of Charles II. — Control of
the Commons — Taxation of the Clergy — National Debt —
Reign of James 11. 6. Control of Commons — Public Reve-
nue — Civil List — Crown Lands — Duties — Direct Taxation-
Legacy Duty — Income Tax — Penal Taxation — Lotteries —
National Debt. 6. House of Lords — Civil List — Public Ex-
penditure — Sources of Revenue . . . 264-293

Cheonological Table ..... 295

Index Ain) Glossaky ..... 296

LIST OF AUTHORITIES.

The following, among others, may be mentioned as leading woiks
on the English Institutions, during the diflferent periods into which
their history is divided in the present volume :

nrrt Period.— Hallam'a Middle Ages (vol. 2), ch. viii. pt. 1.
— Freeman's Norm^ Conquest (vol. 1), ch. iii. — Stubbs' Illustra-
tions of English Constitutional History.

Second Period.— Hallam's Middle Ages (vols. 2, 3), ch. viii. pts.
2, 3. — Stubbs' Illustrations of English Constitutional History.

Third Period.— Hallam's Middle Ages (vol. 3), ch. viii. pt. 3.
— Hallam's Constitutional History of England (vol. 1), ch. i. ii.

Fourth Period. —Hallam's Constitutional History of England
(vols. 1-3), ch. iiL-xiv.

Eifth Period. — HaUam's Constitutional History of England
(vol. 3), ch. XV. xvi. — May's Constitutional History of England,
3 vols.

Six£h Period. — May's Constitutional History of England, 3 vols.

Our political Institutions also form the subject of various chap-
ters in Blackstone's Commentaries on the Laws of England, and
the mere recent Commentaries by Stephen, and by Broom and
Hadley. Some useful statistics as to the present condition of the
country are furnished in the Statesman's Year Book, by Fred.
Martin (published annually).

LIST OF ABBREVIATIONS.

Acts of Parliament are thus referred to : —
St. 32 Hen. 8, c. 16, s. 13, or simply, 32 Hen. 8, c. 16, s. 13 =
the statute of the 32nd year of Henry VIII. 's reign, chapter
16, section 13.
2 Ric 2, st. 1, c. 4= the 1st statute of the 2nd year of Richard

irs reign, chapter 4.
1 WilL & Mar. sess. 2. c. 2 = chapter 2 of the second session of
the reign of William and Mary.
Art. sup. cart= Articuli super Cartas.
8 B & S = Best & Smith's (Queen's Bench) Reports, vol. viii.

4 Burr. = Burrow's Reports (King's Bench), vol. iv.
11 CI. & F. = Clark and Finnelly's House of Lords Reports,

vol. xi.
J., following a name, = Judge; thus "PowellJ."= Judge Powell.

[So C. J. = Chief Justice],
10 Q. B. = Queen's Bench Reports (by Adolphus & Ellis) vol. x.
Stat. "Wynton. = Statute of Winchester.
1 W. Blackst =Sir Wm. Blackstone's Reports, voL i.
2. Wils. = Wilson's Reports, Part iL (Common Pleas). .

PART I.
j&octal anti Socal Sebclopment of tf)e Goni^tttutton.

CHAPTER L
ORIGIN OF THE ENGLISH INSTITUTIONS.

Sources of our Institutions. — The political and
social institutions of the people of England, which together
make up what is called the Constitution, derive their
origin mainly from two sources — (1) The laws and cus-
toms of the Teutonic tribes, who in the time of the old
Roman Empire occupied the central parts of Europe ; and
(2) The feudal system, which grew out of those laws and
customs at a period subsequent to the settlement of the
Angles and Saxons in Britain, and which was imported
into this country at the Norman Conquest. In Conti-
nental Europe the Teutonic tribes, when they overran and
subjugated the countries previously under the sway of
Rome, adopted in great part the institutions, civil and
ecclesiastical, of the population among whom they settled
as conquerors, — institutions which were established by the
authority of Rome, and were based on her civil law. Hence
we find that Roman law remains to this day the groundwork
of all the legal systems of Western Europe, except the
English. The Angles and Saxons, on tlie coutiaiy, -w^i'erv.

ENG. INST. K

2 History of t/ie English Institutions

they invaded Britam, swept away all traces of Eoman
civilisation and institutions from the districts which they
occupied. The constitution, therefore, which first deve-
loped itself as that of Wessex, Mercia, and the other king-
doms of the so-called Heptarchy,* and which, when the
West-Saxon kingdom absorbed its rivals, became, with
various local modifications, the constitution of all England,
was almost entirely Teutonic in its origin and growth.

Early Teutonic Institations. — The early political
and social condition of the German tribes is described by
Tacitus in his Germania,* Among its essential features, we
notice the natural freedom of every individual of the com-
munity, coupled with the possibility, under certain circum-
stances, of being reduced to slavery ; and the right of every
man to take part in the deliberations on all important afiEsdrs
of state, in the trials of offenders who were accused before
the general council, and in the choice of magistrates, who
were appointed to administer justice throughout the dis-
tricts and villages, with the assistance of a hundred of the
common people as assessors. This democratic state of
things was, however, tempered by the existence, first, of kings
possessed of a limited authority, and chosen on account
of their high birth ; and, secondly, oiprincipes who were
dignified with that rank, either for the same reason, or as
the reward of personal merit, and who transacted the
details of public business without consulting the mass of
the people. Another counterpoise to the democratic ele-
ment in the Teutonic institutions, was furnished by the
practice which Tacitus mentions of each princeps attach-
ing to himself a large body of his fellow-tribesmen as

^ The number and dimensions of these kingdoms were perpetually
varying. The name Heptarchy is derived ftam the fact that seven at-
tained to a greater prominence in size and importance than the others.

a See Tac. Germ. cc. 7, 11-14, 24, 25.

Origin 3

followers {comitea), who attended him devotedly in war,
and looked to his bounty for remuneration. This practice
was destined to play a most important part in the political
history of the future nations of Western Europe, being the
groundwork on which the system of feudalism was eventu-
ally erected. In succeeding chapters, the characteristics
of German polity, thus described by Tacitus, will be traced
in the early English constitution and its subsequent de-
velopment; though partially concealed beneath various
modifications and additions, arising out of the changing
circumstances of the people and the progress of events.

Feudalisni. — ^A sketch of the principal features of feud-
alism will be given in chap, ii § 2 (see p. 7), when attention
will be drawn to the effect of its introduction at the Nor-
man Conquest upon the condition of the English peopla
It will be sufficient to observe here that, while in the early
Teutonic polity the relations of the people to their rulers
and among themselves were purely personal in their
nature, these relations under the feudal system were
almost as exclusively territorial It is true that our pre-
Norman ancestors had already begun to blend the terri-
torial with the personal principle in their institutions;
but nearly all the changes effected in the constitution of
the country at the Norman Conquest were connected
with the predominance then given, by the introduction
of continental feudalism, to the territorial relationship
which had previously existed in the country in a com-
paratively imperfect and subordinate form. But though
dominant for a time, it did not stamp out or even per-
manently override the incidents of personal relationship.
Whatever excellence our institutions possess over those
of other nations, is due in great measure to the fact that
the personal element was left in our constitution suffi-
ciently strong to contend with and ev^ii\M"a)^'^ q\«.-

4 History of tfie English Institutiofts

master the territorial element, receiving, however, in the
course of the struggle some moderating and temperin
influences from the opponent principle

g

CHAPTER II.
THE PEOPLE.

1.1 Classes of the People. — ^The English settlers in
Britain were from the first divided into the two great
hereditary classes of Eorls (the pnneipes of Tacitus) and
Ceorls,^ both free, but the former of noble, the latter of
ignoble birth. The oath of an eorl availed against that of
six ceorls, and there was a corresponding diflference in the
amount of the weregild or compensation-money to be paid
for the murdOT of a member of the two classes ; which in
the case of a ceorl was only 200 shillings (whence he was
called a twyhyndman), but in that of an eorl 1200
shillings. Besides these distinctions between the two
classes, another was introduced, which had not existed
when the people dwelt in the forests of Germany. Their
private wealth had then consisted of household furniture,
armour, and cattle, while their land was regarded as the
common property of the tribe. But after settling upon
the conquered soil of Britain, they made continually in-
creasing encroachments on the folc-land, or land common
to the whole people, by converting portion after portion
of it into boc-land — land held by private individuals, by
book or charter. Landed wealth was at first the accom-
paniment of noble birth or personal merit, and when it
became dissociated from these, it was gradually looked

^ For the periods of our history to which the sections marked 1-6
in the different chapters correspond, see the Preface.

* The words have now, under the modernised forms of earl and
churl, acquired totally different meanings

The People 5

lipon as in itself constituting a claim to peculiar political
privileges. If an eorl was always presumed to have a
considerably larger amount of landed wealth than a ceorl,
the supposition was no doubt at first invariably in
accordance with the fact. But when the presumption
came to be notoriously violated, as in process of time it wsw
inevitable that in particular cases it should be, it led to a
division of the eork into twdfhyndmen, or those who held
a due amount of land, and whose weregild was therefore
retained at 1200 shillings; and sithcundmen, men of gentle
blood, but of small means, who were subsequently deno-
minated syxhyndmen, from the fact that their weregild
was reduced to 600 shillings. At the same time, the purely
hereditary basis of the English nobility was modified
and ultimately supplanted by the practice which has
been mentioned (p. 2) of personal attachment to a chieftain.
The chieftain was called the hlaford^ or loafgiver^ as the
dispenser to his followers of rewards for their services; and
they were denominated his thegns (in its Latin form
thanes) or servants, with occasionally a prefix denoting
their special branch of service; as in the case of the
king's dish'thegn, boiver-thegn, and horse-thegn, who, not-
withstanding their menial titles, held high rank in the
state. The twelfhyndmen, the highest grade of eorls,
became converted into the king's thegns, who owned him
as their immediate hlaford. The syxhyndmen, who had
not property or position enough to serve the king directly,
became the thegns of some ealdorman or bishop. It was
at length established as a fixed principle, that a man must
be commended, as the phrase was, to some lord, or he
would be treated as an outlaw. As regards the ceorls,
the lord to whom they were commended was determined

' Hence the modern word lord, as ladi/ is from the feminvaa Moef -
dige.

6 History of the English Institutions

by their place of residence ; all the ceorls living within a
certain district, called on that account a lordship (see ch. iiL \
being commended to the thegn who was lord of that district
This relation constituted no small restraint upon the per-
sonal liberty of the ceorl ; for he could not change his place
of residence, which involved a change of lord, without the
leave of the former lord. Although the ceorls thus had
all of them their hlaford, they were not dignified, in
relation to him, with the title oHhegns, a title which now
carried with it a definite political and social rank. But a
ceorl was admitted to the rank of thegn who had crossed
the sea three times in commercial enterprise at his own
risk, or whose family had held five hydes (600 acres) of
land; with a church and mansion, for three generations.
A ready way to the privileges of thegnhood also existed
through the ranks of the clergy. For, on the one hand,
the Church admitted into the ministry men of every degree
alike; and, on the other, all presbyters were placed civilly
on a level with the thegns, and in some respects stood
higher. Thus their oaths were taken as an equivalent to
those of twenty ceorls. And bishops and abbots were
regarded as among the highest nobility of the land. But
while many roads were thus opened for individuals among
the ceorls to rise, the class as a whole became gradually
depressed. The mere fact that the leading men were
being perpetually taken out of it, created of itself a
natural tendency in that direction.

Slavery. — ^The institution of slavery, which had existed
among the Teutonic tribes on the Continent, was perpe-
tuated among those who settled in Britain. The class of
tJieowa or thralls was originally composed only of Welsh-
rnen or foreigners, being Britons who survived the general
extermination in the districts occupied by the Teutonic
iirraders, or who were subsequently taken prisoners in

The People 7

war. But an Englishman might be reduced to this class
by failing to pay a weregild incurred by him, or by the
commission of certain offences. The class was like the
others hereditary, but escape from it might be obtained
by manumission on the part of the owner of the thralL
The thralls were not considered part of the body politic;
and they were the absolute property of their owner, to
whom was paid the compensation money in case one of
his thraUs was killed.

Defence of the Realm. — Under the early English
system all freemen, or at any rate all who held land, were
Wdiers; and those of each shire were led to the field in
time of war, as each tribe had formerly been, by the
ealdorman. As the principle of lordships gained ground,
the various lords would hold subordinate commands over
their own vassals. The htiscarU or body-guard, which
Cnut kept about his person, were the earliest germ of a
standing army, not only in England, but probably in all
modem Western Europe.

2. Feudalism. — ^We have seen that before the Con-
quest the classification of the people was becoming
gradually more and more territorial in its character.
The existence of this tendency no doubt rendered the
introduction of continental feudalism, by which the
tendency was converted into an absolute fact, more
natural and easy ; but the complete establishment of the
feudal institutions in this country was mainly owing to
the revolts of the English in the first few years after the
Conquest, and the consequent extensive confiscations of
land, which created a void in the political and social
organisation of the country, and thus afforded room for a
new system. Under the feudal rSgimef the old orders of
thegns, ceorls, and thralls gave place to the nfiNV ^Nmcstv

8 History of the English Institutions

of the rural population into barons, freemen, and viUeins.
The clergy became separated into an isolated class of their
own, and the burgesses in the privileged towns occupied
a distinct and independent position ; but the political and
social status of the three former classes was associated with
the terms of their ownership or occupation of land.

According to feudal principles, all the land of a country
belonged to the king, not as representing the community,
but as sovereign feudal lord. Out of this land the king
granted portions to his subjects, on condition of theii
paying him homage and fealty, and rendering him active
military service for forty days in every year. The por
tions granted to his more immediate and distinguished
followers, who were called his barons, were termed barcniies,
and were of large extent ; and the barons in their turn
made subinfeudations or under-grants of parts of them to
their own retainers, on similar conditions to those imposed
upon themselves. The grantor of the land was called the
lord, and the person to whom the grant was made the
tenant in chivalry — tenant by knight's service, or military
tenant The immediate tenants of the king were called
tenants in capite or in chief, in order to distinguish them
from the subtenants.

The military tenants, or at any rate those who held
of the king in capite, were liable to be required to receive
the honour of knighthood, and undertake the incident
services and burdens. About the end of Edw. Vs reign
those whose lands yielded less than £20 a-year were
exempted from the requirement; and exemption of it
could be purchased by the others on payment of a com-
position or fine. In addition to homage and fealty, and
assistance in the field, the lord was entitled to receive
from his military tenants certain aids or contributions
in money on special occasions; namely, towards making

The People 9

Ills eldest son a knight, providing once a suitable marriage
for his eldest daughter, and ransoming him if he was
taken prisoner in war. Besides these legal contributions,
a tyrannical lord not unfrequently extorted aids from his
tenants on other occasions.

The relation between landlord and tenant, though at
first merely life-long, soon came to be regarded as heredi-
tary, the iieir becoming entitled on the death of the tenant
to occupy his land upon the same terms. But if the heir
was under age (full age for this purpose being considered
twenty-one in case of males, and sixteen in case of females)
the lord became the guardian in chivalry, with a right to
receive the profits of the land for his own benefit; and,
moreover, with power to arrange a marriage for the ward,
a refusal of which subjected the latter to the forfeiture of
the estimated value of it to the lord. On attaining full
age, the ward obtained livery or ouster-le-main from the
lord on paying a fine of half a yeai^s profits of the land,
and entered upon the full privileges and liabilities of the
former tenant. If, on the other hand, the heir was of age
at the time of the tenant's death, the lord received a
relief ot pecuniary fine upon his succeeding to the pro-
perty; and the king was further entitled from the heirs
of his tenants to primer seisin, or the first yearns profits of
the estate. And if a tenant died without heirs the land
was liable to escheat or return to the lord. This might
occur in two ways : first, if the kindred or blood of the
tenant altogether failed; and, secondly, if the tenant
committed one of a certain class of crimes called felonies,
and was either tried, convicted, and sentenced for it, or
fled the country, and was outlawed for it, for in both
cases he was said to be attainted — that is, his blood was
corrupted, and his heirs and kindred cut off", so that he
could not transmit the inheritance to them. 11 Wi'a mma

lO History of the English Institutions

committed was treason, the land was forfeited not to the
lord, but to the king. As the interest of the lord in the
land thus by no means ceased when he granted it to a
tenant, and as it made a considerable difference to hinn
what were the personal capabilities and character of his
tenant, it evidently could not be allowed to the latter to
sell and part with his land, or leave it away by his wiQ
whenever and to whomsoever he pleased without the con-
sent of the lord. Accordingly we find that it was long
before this freedom of alienation was obtained. In the
mean time the lord's consent was frequently purchased by
the payment of a fine; or recourse was had to the other
and readier mode of alienation by way of subinfeudation,
which has been already noticed as practised from the first
by the great barons. The tenant retained his relation-
ship towards his lord, but granted parts of his land to
others to hold as tenants of himself upon the usual feudal
conditions. Thus a new lordship, or, as it was also
termed, manor was created within the old one, and this
process was capable of multiplication to any extent

Such was the character of tenancy hy TmigMs service
which prevailed over the greater part of the lands of the
kingdom. Some lands, however, were held in socage
tenancy, involving the payment of a certain yearly rent,
and a liability to the feudal aids and to escheat, and also
in a mitigated form to relief and primer seisin, but free
(except in the case of socage tenants in capite) from the
burdensome incidents of wardship and marriage, and also
from the duty of rendering personal military service.
The existence of these exemptions, and particularly of
the last, rendered it a matter of less importance to the
lord who his socage tenants were. We consequently find
that the right of free alienation of socage lands was
acquired at a comparatively early period.

The People 1 1

Villenage. — ^All the land which either the king, as
sovereign lord, or an inferior lord retained in his own
hands, instead of granting to a vassal, was called his
dominiea terra or demesne land, the land of the lord.
This land was cultivated by the lord's villeins — peasants
who, holding no land by feudal tenure, resided on the
lord's land on sufferance as his serfs. The origin of
villenage and of the villein class is not very clear. It
was, in some respects, a continuation of the old English
slavery or thraldom, but it embraced a far larger propor-
tion of the population than the older institution had ever
included. In fact, after the Conquest, the majority of
the old ceorl class were reduced into a state of villenage ;
a degradation which was in part made easy by the pre-
vious existence of restrictions on the ceorls, such as in-
ability to leave their lord without leave, similar to those
to which the villeins were afterwards subjected. The
depression of the villein clasiS appears to have reached its
lowest point in the reign of Hen. 2. A villein was
then destitute of any property of his own, and was abso-
lutely dependent upon the will of his lord, to whom he
was compeUed to perform unlimited services. A writ de
ncctivUaie probanda was issued for his recovery if he fled
from his lord's service. The class was divided into villeins
regardant, who had from time immemorial been attached
to a certain manor, and villeins in gross, where such pre-
scription had never existed, or had been broken through
the sale of the villein by his lord or in some other way.
From the time of Hen. 2 onwards the condition of
the villeins in England was continually improving, and
their number constantly decreasing. This was not owing
to any legislation in their favour, but was the indirect effect
of various causes, among which may be reckoned the subin-
feudation and transfers and leases of land, ^l[a<e^\i ^-^^^^^

1 2 History of tJie English Instituiions

the connection between the villein and his original lord ;
the gradual substitution of a fixed though onerous tenure
of land called copyhold tenure, instead of the villein
tenure, which it had rested absolutely with the will of
the lord to continue or terminate at any time without pre-
vious notice; the difl&culty of recovering absconded villeins
owing to the imperfect means of communication, and the
legal technicalities attending the process; the regulation
that a villein who resided unmolested for a year and a
day in a walled city or borough, or who took holy orders,
became free ; and the practice, which was sometimes em-
ployed, of voluntary manumission, or of manumission on
purchase of his liberty by the villein out of money which,
contrary to the theory of the law, he had been allowed
to appropriate to himself.

Aliens. — The inability of an alien not only to hold
public offices and to exercise any civil rights, but also to
acquire landed property in this country, was not peculiar
to feudalism, though of course in accord with its prin-
ciples. The disqualification could be removed by deni-
zailon, the king having the prerogative by letters patent
to make an alien a denizen, which gave him thencefor-
ward the status of a subject. It was also more effectually
removed by naturalisation by Act of Parliament, which
had a retrospective effect, enabling the previously-born as
weU as after-bom children of the naturalised alien to in-
herit land from him, and enabling the man himself to
inherit from others. One class of aliens, namely, the
Jews, were subjected to special legislation. Their utility
as money-lenders led to their being given certain privi-
leaes, but these were more than counterbalanced by the
restrictions to which they were subjected; and in Edw.
I's reign the feeling against them was so strong, that they
were banished from the kingdom.

The People 1 3

Barons or Peers. — To return to the barons. Their
feudal relation to the king gave them the right of attend-
ing his feudal court or council, and assisting him by their
counsel in the transaction of its business. This right was
sometimes recognised as extending to the inferior tenants in
capUe, but belonged in a special degree to the barons, who
were all deemed^are^, peers or equals, one of another. With
the exception of a few distinguished individuals, to whom
the Conqueror assigned the government of shires, with the
old English or Danish title of Earl (see ch. iiL § 1), or its Nor
man equivalent Count, they were all originally alike styled
barons. About the reign of Hen. 2, the practice was begun of
giving the title of earl as a mere mark of distinction, and in
order to confer precedence, without attaching to it any
administrative duties. The other ranks were not created till
later. The bishops, and those abbots and priors who held
from the king sufficient lands to constitute a barony, were
reckoned among the barons as spiritual lords. Besides
the political privileges enjoyed by the peers of attending
the king's great council, and subsequently the upper house
of Parliament, they likewise possessed certain peculiar
privileges in case of being subjected to judicial proceed-
ings; as, for instance, that they were entitled to be tried by
members of their own order, and were exempt from arrest
in civil cases. Moreover, the use of language derogatory
to them was deemed a special offence, and designated as
scandalum magnatum. With one exception noticed later,
there is no instance of a peer having lost his dignity
except by death or attainder. The hereditary nature of
the peerage was doubtless in its origin connected with the
hereditary descent and inalienability of the lands which
formed the barony; and our nobility appears from the
first to have differed from the continental nobility in the
fact, that it descended to the eldest male TepieB.eiii\a.^N^,

14 History of the English Institutions

or in default of male representatives, the eldest female
representative of the line alone, while the other members
of the family passed into the ranks of the commons. It
is impossible to overestimate the advantages of this regu-
lation, not only to the peerage itself, but also to the whole
English nation. Under it, even the king's children
(except his eldest son, who, since Edw. 3's reign, is, by
birth, Duke of Cornwall) are in the eye of the law, until
specially raised to the peerage, simply commoners. For
the title of prince is as much a title of mere courtesy as
that of lord or lady applied to the younger children of
some peers, or to the eldest before succeeding to the
peerage.

Purveyaaioe aaid Pre-emption. — Besides the oner-
ous accompaniments of feudal tenure, the whole of the free
rural population was, through the king's prerogative of
purveyance and pre-emption, subjected after the Conquest
to a burden which had previously fallen only upon the
occupiers of folcland (see ch. x.) When the king jour-
neyed from one part of the kingdom to another, his pur-
veyors had the right ol forcibly buying at an arbitrary
value provisions and necessaries for the use of the court
on the route ; and the crown had also the power of impress-
ing horses and carriages, and cutting down wood for royal
or national purposes.

Forest Laws. — ^The tyranny arising from an oppres-
sive exercise of these powers was, however, far exceeded
by that resulting from the forest laws imposed at the Con-
quest throughout the old forests, and extended to the
districts afforested^ or depopulated and turned into hunting-
grounds by the Conqueror and his successors. Proceed-
ing upon the principle that animals of the chase and game
were, like the land, the exclusive property of the king
and the persons to whom he granted rights over them,

The People i S

these laws inflicted the penalty of death on a person who
killed deer without authority, and visited with various
punishments of more or less severity any minor damage
done to the king's vert or venison, to the sward and feed-
ing-grounds of the animals, or to the animals themselves.

Clergy. — The clergy after the Conquest held, from a
ci^ point of view, a less honourable but more privileged
position than before. With the exception of the higher
ecclesiastics, who held baronies, they were thenceforth
excluded from the right of participating in the judicial
and administrative business of the whole kingdom, and of
the separate shires and hundreds. On the other hand,
this very exclusion exempted them from the performance
of many onerous duties, and the lands held by them
were free from the ordinary feudal burdens; and they
possessed the right of taxing themselves independently
of the rest of the community. Further, offences com-
mitted by them, and matters affecting them were tried,
not in the civil courts and by the law of the land, but in
the ecclesiastical courts and according to the foreign canon
law. The abuses arising from this state of things led in
Hen. 2's reign to the enactment of the constitutions of
Clarendon (a.d. 1164), which restricted gifts of land to
the Church, from a regard to the loss of feudal service
which the king suffered from the practice; and regulated the
proceedings of the ecclesiastical courts, considerably limit-
ing their jurisdiction, and transferring to the civil courts
the cognizance of many matters which they had assumed
the right to decide. By forbidding the clergy to leave
the kingdom without royal license, it was sought to check
the increasing tendency to carry ecclesiastical appeals to
Eome, which was yearly giving the Papal See more and
more power over the English Church. The exercise of the
power of excommunication was controlled, and tlaa tv^\»

1 6 History of ilie English Institutions

of the king to a voice in the election of bishops, abbots,
and priors asserted. Lastly, it was declared that villeins
should not be ordained without the consent of the lord on
whose lands they were bom. Most of the provisions of
the constitutions of Clarendon were speedily disregarded,
and the liberties of the Church were solemnly guaranteed
by the Great Charter, and reasserted in aU the confirma-
tions of it. But many statutes, called Statutes of Mort-
main, were directed, in Edw» I's reign, and subsequent
reigns, against the dedication of land to the Church, and
its consequent withdrawal from liability to contribute to
national purposes, — a practice which naturally became
common when alienation of land was permitted, and the
hope was set before profligate landowners of atoning on
their deathbed for the sins of their past life, by bestowing
their possessions on the Church.

Defence of the Realm. — ^The old English national
force was dissolved during the confusion which followed
the Conquest, and no substitute for it was immediately
provided. For so late as 1085, we find that feudal
tenures, with their military and other incidents, had
been by no means universally established. But the
.alarm excited in that year by the prospect of a fresh
Danish invasion, caused attention to be directed to the
defenceless state of the country, and no doubt gave a con-
siderable impetus to the completion of the feudal parti-
tion of land in the country. This partition was ultimately
so far developed by William I. as to secure for him an
army of 60,000 men, in a constant state of preparation
and equipment, and bound to perform annually forty
days' service whenever he required it. In later reigns,
however, when the ranks of the feudal army were thinned
by the prevalence of commutation for personal service, it
became necessary to revive the old pre-Norman orgamsa-

T lie People 17

tion, which a levy under William Eufus, and a muster to
repel the Scottish invasion in 1173, had proved to be not
wholly extinct Accordingly, Henry 2's Assize of Arms
(a.d. 1181), and afterwards the Statute of Winchester
(13 Edw. 1. c. 6), required every free man to provide
himself with arms suitable to his condition.

Magna Caxta. — The oppressions to which all classes
of the people were subjected under the feudal system,
during the reigns of Hen. 2 and his sons, led at length
to the powerful combination of barons, which extorted
from John in 1215 the first grant of the Great Charter.
This instrument, of which repeated confirmations were
obtained from the two succeeding kings, has justly been
regarded as the great bulwark of English freedom. While
it erected safeguards for our liberties on almost every
conceivable point, a large portion of it was naturally
directed against feudal abuses. After the general confir-
mation of the liberties of the Church, and of all free-
men, provisions were inserted which limited the amount
of relief to be paid by the heir of a deceased count, baron,
or military tenant on succeeding to the inheritance, and
the extent of the profits to be taken by a guardian in
chivalry from his ward^s lands ; and required the guardian
to maintain the ward's property in good repair and con-
dition, and to provide a suitable marriage for the ward,
giving previous notice of the match to the ward's rela-
tives. The dower of widows was also secured to them,
and they were not to be obhged to remarry, if they pre-
ferred to remain in widowhood; though if they did re-
marrv, it must be with the consent of their immediate
lord. The mode of recovering crown debts was rendered
less oppressive. No lord, except the king, was to take
any aid from his free tenants, except for the purpose of
ransoming himself, making his eldest son a km^\), ^^sA

BN& INST. "&

1 8 History of the English Institutions

providing a marriage once for lua eldest daughter, and
the contributions for these objects were not to be exces-
sive. Ko tenant was to be required to render more than
the due amount of military or other service. If a manor
escheated to the crown the tenants were not therefore to
be liable to any greater reliefs or services than under the
former lord. With regard to the lands of those who
were convicted of felony, the king was not to hold
them for more than a year and a day, and then they
were to relapse to the immediate lord. Some of these
provisions had been inserted in the Charter of liber-
ties published by Henry L at his coronation, but had
not been subsequently observed. A prohibition was
added against the royal constables or bailifife taking a
man's crops or effects without his consent, or without at
once paying their value; and against the king or any
sheriff, or any king's bailiff or other person using the
horses or vehicles, or cutting down the wood of a free
man, for fortifications or other royal or public purposes,
without his leava And a knight was not to be required
to pay towards the garrisoning of a castle, if he was will-
ing to garrison it himself, or was summoned away on
military service.

But, as has been already said, the Great Charter was not
confined to the alleviation of feudal burdens. It contained
an explicit stipulation on the far more important subject of
personal liberty. " Let no free man," so runs c. 39, " be
taken or imprisoned, or disseised, or outlawed, or banished,
or be in any way destroyed; nor will we pass upon him,
nor will we send upon him, except by the lawful judg
ment of his equals, or by the law of the land."^

^ '* Nullns liber homo capiatur, vel imprisonetnr, aut dissaisiatar ant
utlagetur, aut exuletnr, aut aliquo modo destruatur, nee super euni
ibimns, nee super eum mittemus, nisi per legale judicium parium
saonun, vel per legem terrae."

The People ig

International relations were also regulated. A free
ingress, egress, and right of sojourning in England, with-
out the liability to any unjust imposts, was conceded to
all merchants for purposes of trade, except to subjects of
a hostile state in time of war; a provision being inserted
that any of the latter, who chanced to be in the country
at the breaking out of the war, should be detained until
it appeared what treatment was accorded to English mer-
chants happening at the time to be in the enemy's country,
and should be treated in like manner. The next clause
granted a general liberty of leaving the country, and re-
turning to it, except temporarily in time of war, when
the pubHc interests required a restraint.

Charter of the Forest. — The Great Charter had pro-
hibited for the future the erection of weirs for private
fisheries in rivers; and as to the forests had declared that
all which had been afforested during the reign of King
John, should be at once disafforested, and aU bad customs
respecting forests and warrens should be inquired into
by 12 chosen knights of the shire, and be irrevocably
abolished. The forestal abuses, however, required to be
met by a distinct charter, called the Carta de foresta^
which was first granted in 1217 in the reign of Hen. 3,
and was afterwards confirmed at intervals, together with
the Great Charter. It removed or alleviated many of the
severe restrictions of the forest laws; and with regard to
the most heinous offences against those laws, enacted that
no man from henceforth should lose either life or limb
for killing the king's deer; but should pay a heavy fine,
or, if unable to do so, should be imprisoned for a year and
a day; and after the expu'ation of that time, if he could
find sufficient sureties he should be discharged, but if not
he should abjure the realm of England.

20 History of tlu English Institutions

3. Peers. — ^During the period between Edw. I's reign
and the Keformation the number of the barons was enor-
mously reduced, first by the Scottish and French wars,
but above all by the internecine wars of the Hoses.
During the same period distinctions were introduced
among them by the introduction of three new titles.
Edward IIL (who was also the institutor of the order of
the Garter), when on assuming the style of King of
France he gave up that of Duke of Normandy, intro-
duced the degree of dvke into the English nobility by
creating Edward the Black Prince Duke of Cornwall, and
gave it the highest place in the peerage. His successor,
Richard II., created a new rank of marquess^ with prece-
dence next in order to that of duke. In Hen. 6's reign
the title viscounty originally the Norman-French designa-
tion of the sheriff, was first given, with a rank next to an
earl, as an honorary distinction, independently of the
office which had been up to that time attached to it. In
Edw. 4's reign a noble, holding one of these new titles,
George Neville, Duke of Bedford, was degraded from the
peerage by Act of Parliament on account of his poverty,
which rendered him unable to support his dignity. This
proceeding has no parallel in our history either before or

since.

Decay of Feudalism. — ^The details of the feudal
land laws became, as time went on, more and more diffi-
cult to work, owing, among other causes, to the increased
facilities for the alienation and transfer of land. In
Hen. 8's reign the power of alienating land from the legal
heir by will was at last conceded, though with some
qualifications ; but it had before that time been practised
in an underhand way, through the device of alienation
during life to a stranger, who agreed to hold the land
upon the trusts and for the purposes directed by the will.

Tlu People 2 1

the performance of these trusts being in such cases com-
pelled by the Court of Chancery. The continued enforce-
ment of the feudal obligations is, however, evidenced by the
establishment, in the same reign, of a court of wards and
liveries, for the decision of questions as to the rights of
the king against his tenants in these particulars.

Villenage. — The gradual extinction of villenage, which
was at this time in progress, by the blending of the vil-
leins with the labouring class of free men, is evidenced by
the Statute of Labourers, as it is called, passed in 1349,
after the great plague of that year, to remedy the refusal
to work except for excessive wages, to which labourers
were tempted by the depopulation of the coimtry and con-
sequent scarcity of labour. That statute, on the one hand,
imposed compulsory labour on both free and bond alike ;
but, on the other hand, it recognised the right of the
latter as well as the former to receive moderate wages.
An Act of 1388, on the same subject, extended to labourers
and servants generally the restrictions on change of resi-
dence to which villeins had been always subject ; obliged
persons who had been engaged in husbandry to continue
in it through life; and forbad agricultural labourers to
wear arms. And in Hen. 4*s reign we find the practice of
labourers putting out their children as apprentices in towns,
and so occasioning a dearth of farm labour, complained
of and forbidden, and the labourers dwelling in every
leet are required to be sworn every year to serve accord-
ing to the labour statutes of the two preceding reigns. At
the same time, any one, whatever his condition, is per-
mitted to put his children to school wherever he pleases.
These various restrictions, while they had the immediate
effect of depressing the poorer free men to the level of
villeins, probably assisted eventually in abolishing the
latter as a distinct class; for when they fell mto A.\a\\&<i, — ^v&

22 History of tlie English Institutions

it was inevitable that they very soon should, — the villeins
and freemen, who had become intermixed in d^radation,
emerged from it indistinguishably together.

Liberty of the Subject. — Many statutes were passed
about the time of Edw. 3, for the protection of the liberty
of the subject, some of which were nothing more than
detailed provisions for the due observance of the stipula-
tions of the Great Charter. The right of purveyance was
regulated so as to press as lightly as possible upon the
persons still subject to it. It was repeatedly laid down
that none should be imprisoned nor put out of his freehold
but by the law of the land. And with regard to the
military service required from aU freemen, it was enacted
that no man should be compelled to go out of his own
shire, except in case of necessity or of sudden invasion,
nor be liable to provide soldiers, unless bound to do so by
his feudal tenure, or required by special authority of
Parliament.

Restraint on Religious Opinions. — The first dis-
tinct instance of State intervention to repress the teach-
iQg and spread of opinions at variance with the doctrines
which the Church of England at that time held in common
with the rest of Christendom, occurs in Hen. 4's reign.
The writ de hceretico comhurendo appears to have existed
in our common law from a much earlier period ; but the
introduction into this country and the growth of the sect
of the Lollards in the 14th century, led at the beginning
of the following century to the passing of st. 2 Hen. 4,
c. 15,* which regulated the mode of enforcing in the
ecclesiastical courts the penalty of the flames against a
teacher of heretical opinions who refused to abjure them,
or relapsed into them after abjuration, and inflicted impri-
sonment on persons favouring such teachers or keeping
8 As to this statute see below, ch. vii. § 3.

The People 23

heretical books in their possession. By an Act of Hen.
5*8 reign heretics were made amenable to the civil courts.
And during the struggles of the Eef ormation, in the reigns
of Hen. 8 and Mary, the rigour of the laws against heresy,
and the severity with which they were enforced, rose to
the highest point

Bestriction on Printing. — With one exception, a
special notice of the restrictions which have from time to
time been placed upon the exercise of various trades and
manufactures in this country does not fall within the
scope of constitutional history. The one case which
requires notice is that of printing, which, since its inven-
tion in the 15tli century, has inevitably exercised a most
important influence upon the politics as well as the other
afi^drs of aU civilised nations. !N'o sooner was the destined
extent of this influence perceived than the press was
throughout Europe subjected to a rigorous censorship.
No writings were permitted to be published without
license, and the printing of unlicensed works was visited
with the severest punishments. Until the Reformation
the censorship of the press was looked upon as an ecclesi-
astical affair, and Henry VIII. assumed an absolute control
over it by virtue of his ecclesiastical supremacy.

Aliens. — Notwithstanding the privileges granted to
foreign merchants by the Great Charter, the residence of
aliens in England contiuued subject to many restrictions.
Not only were aliens liable to pay a higher proportion of
duties and taxes than subjects, but many statutes were
from time to time passed, forbidding them to engage in
manufactures or in retail trade on their own account,
restricting their commerce and theur employment of ser-
vants and apprentices, and placing them under strict
supervision. St. 32 Hen. 8, c. 16, extended their in-
ability to hold land by prohibiting them from taikm:^ aii^

24 History of the English Institutions

dwelling-house or shop on lease, and declared all previous
leases to them void.

Defence of the Realm. — In times of public danger
it became usual to issue commissions of array into the
different counties for the purpose of ascertaining that the
inhabitants were in a due state of military equipment.
In 1485, Henry VIL followed the example of Cnut
(see p. 7), and established as a royal bodyguard the
yeomen of the guard, whose number, commencing with
60, ultimately reached 200. And in the following reign
was founded the London Artillery Company, a voluntary
association for the practice of archery.

Impressment for the Navy — ^In the reign of Ric
2 occurs the first statutory notice of the power of the
Crown to impress seamen for the royal navy, a power of
which it is not easy to discover the origin. Its exer-
cise, however, was at any rate at that period recognised as
undoubtedly lawful, for 2 Ric. 2, st. 1, c. 4, inflicted
penalties in case of the desertion of the seamen impressed;
and the power is sanctioned and regulated by subsequent
statutes.

4. Villenage and Slavery. — The causes before
alluded to as tending to the extinction of villenage had
before the Reformation operated so powerfully in that direc-
tion, that in Edw. 6's reign no instance of a villein in gross
was known throughout the country, and the few remain-
ing villeins regardant were attached to the lands of the
Church, or to those which had been confiscated from her
in the preceding reign; the clergy and monastic orders
having been careful to inculcate on the laity the peril of
keeping fellow-Christians in bondage, but having refrained
from carrying their precepts into practice themselves from
a regard to the duty, in their eyes paramount, of main-

TIu People 2$

taming intact the possessions of the ChurcL That reign
witnessed the first and only attempt since the Norman
Conquest to create a new kind of slavery by statute. In
1547 it was enacted that a runaway servant, or idle
vagabond, brought up by any person before two justices,
should be adjudged slave to that person for two years, and
be fed on bread and water, and compelled, by beating,
chaining, or otherwise, to do any kind of work, and might
have an iron ring put round his neck, arm, or leg. If he
absented himself from his master for 14 days during the
two years, his slavery was to become perpetual Eunaway
apprentices were condemned to be the slaves of their
master for the rest of their term of service. And slavery
for a limited period was also imposed on convict clerks.
But this Act was repealed two years afterwards.

Extinction of Feudalism. — All feudal distinctions
and divisions of the community were at the time of the
Reformation, together with villenage, fast disappearing.
This was due in part to the abolition of the jurisdiction
of the local feudal courts which accompanied the sub-
jection of the whole country to the central judicature, and
in part to the increased facilities for the alienation and
transfer of land, which loosened the ties between lords
and tenants. Further, the increase of commerce and of
moveable property created a wealthy and influential class
within the kingdom, who were wholly without the pale of
feudal institutions, and the existence of this class could
not fail to weaken the hold of those institutions upon
that part of the community which was subject to them.
The last occasion on which feudal tenants were summoned
to render personal service was in the expedition against
the Scotch in 1640. Their Hability to this service was
recognised by an Act of that year (16 Cha. 1, c. 28)^
which after laying down in the preamble tYiaX. ^^\i^ \)!afe

26 History of the English bistitutions

laws of this realm none of his Majesty's subjects ought to
be impressed or compelled to go out of his country to
serve as a soldier in the wars, except in case of necessity
of the sudden coming in of strange enemies into the king-
dom, or except they be otherwise bound by tenure of their
lands and possessions," empowered justices of the peace and
the mayors of municipal towns to impress soldiers to serve
against the rebels in Ireland. In the same year one of
the most onerous of the feudal incidents was abolished.
James L, who for the purpose of raising money, sold
peerages and instituted a new order of hereditary knights
called baronets, to which he granted admission on pay-
ment of a stated sum of money, had also revived the
practice, which, with the exception of having been once
resorted to by Elizabeth, had for some time become ob-
solete, of requiring military tenants to receive knighthood
or pay the composition instead. This practice was renewed
by Charles L, who carried it out ^vith excessive rigour.
But in the first session of the Long Parliament it was
enacted (16 Cha. 1, c. 20) that no one should thenceforth
be compelled to receive knighthood, or to pay any fine for
not doing so. Another Act of that session restrained the
attempts of the king to revive the obsolete tyranny of the
forest laws, and to extend them to districts which had
practically long since ceased to be treated as parts of the
royal forests.

Billeting. — There was another burden to which the
people were subjected in Cha. Ts reign, not exactly feudal,
but connected with the defence of the realmu This was
the practice of forcibly billeting soldiers and sailors in
private houses. The Petition of Right (3 Cha. 1, c. 1),
after reciting its prevalence and its illegality, prayed that
the king would be pleased to remove the billeted soldiers
and marines, and that the people might not be so burdened

The People 27

in time to come. The assent of the king to the petition
did not, however, put a stop to the practice. Fifty years
later the continued practice of biUeting rendered it neces-
sary to pass an express enactment that no officer, military
or civil, or any other person whatever, should thenceforth
presume to quarter or billet any soldier upon any subject
or inhabitant of the realm of any degree, quality, or pro-
fession, without his consent, and that any such subject or
inhabitant might lawfully refuse to admit such soldier, not-
withstanding any command to the contrary (31 Cha. 2,
c. 1, 8. 32).

AbolitLon of Feudal Courts. — ^After the Eestora-
tion, a decisive blow was dealt at feudalism by si 12
Cha. 2, c. 24. That Act put an end to the Court of Wards
and Liveries, and to all wardships, liveries, primer seisins,
and ouster-le-mains, values of marriages, wardships, fines
for alienation, escuages and aids, and other incidents of
tenure by knighf s service or socage tenure in capite, and
converted all such tenures *into free and common socage
tenure. Copyhold tenure was however retained. The
king's right to purveyance and pre-emption was by the
same Act finally abolished. Thus was completely swept
away all that was burdensome in the remnants of feudal-
ism; for we cannot regard as such the surviving traces of
it, some of which even now exist in many of our institu-
tions, and especially in our law of landed property.

Beligious Penalties and Disabilities. — But while
the feudal distinctions were dying out, events were leading
to the introduction and growth in importance of a totally
different kind of distinction among the people of England.
The repression of heresy as such by the civil power in
preceding reigns has been already noticed. This, though
really incompatible with the principles of Protestantism,
was not wholly abandoned at the time of the BftioiraaXiQtu

28 History of the English Institutions

Heretics were burnt on five occasions in the reign of
Elizabeth, and twice in the foUowing reign. But the
popular compassion exhibited on the last of these occasions
was so great that it was thought expedient not to carry
into effect the sentence which l^ad been passed on a third
offender. And in 1667 the writ de hceretico comhurendo
was at length abolished by statute. Religious opinions
were, however, now taken notice of by the State in another
mode. Before the Reformation, with a few inconsiderable
exceptions, all the individuals of the community had pro-
fessed one religious belief and belonged to one religious
body, the Church of England, which was then like the
Continental churches, though not to the same extent, sub-
ject to the paramount authority of the Papal See; and
sectaries were liable to the penalties attaching to heresy, so
that there was no occasion to impose upon them any civil
disabilities in addition. But when the Church of England
became reformed and reconstituted in the reigns of Hen.
8 and his son and younger daughter, and when the sove-
reign and the mass of the nation cast off the yoke of
Rome, a certain portion of the people remained attached
to the old order of things, while another portion were for
making still more radical alterations in religious matters
than were in fact accomplished. In those times the prac-
tice of resorting to political means in order to produce
religious changes in a nation was considered both proper
and efficacious; and no doubt in some cases it proved to
be successful. The general adoption of this practice
rendered it necessary for a government, like our own,
which was then looked upon as one of the mainstays of
Protestantism, to protect itself against the political intrigues
of its own Roman Catholic subjects, by debarring them
from civil offices, the holding of which might give them
an opportunity of endangering or at least harassing the

The People 29

existing form of government It is important, therefore,
to bear in mind that the restrictions which were at this
time placed upon Roman Catholics and afterwards upon
Protestant Nonconformists, whatever may be thought of
their expediency, were imposed on political grounds, and
were upon those grounds perfectly justifiable. We find,
in fact, that their severity was increased or diminished in
proportion to the activity or otherwise of the agents of the
Papacy, and notably of the Jesuits, in intriguing against
the government of the country. In the first place, the
stas. 1 Eliz. c. 1, and 5 Eliz. c. 1, required the oath of
supremacy, to the efiect that the queen was supreme both
in ecclesiastical and in temporal matters (to the former
part of which a Roman Catholic was of course unable to
assent), to be taken by every lay as well as ecclesiastical
officer, and every person in receipt of a salary from the
crown; also by graduates of the universities and all
persons in any way connected with the law. Only
temporal peers were exempt, the queen being " otherwise
sufficiently assured of the faith and loyalty of the temporal
lords of her high court of parliament" The many acts of
the same reign inflicting penalties on non-attendance at
the services of the Church of England, were directed alike
against Protestant and Popish Nonconformists; but it is
not surprisiug that in the following reign the discovery of
the Gunpowder Plot should have led to measures of
special severity against the latter. They were made
liable to forfeit all their goods and two-thirds of their
lands to the king ; were debarred from certain trades and
professions, and from being executors, administrators, or
guardians; and were forbidden to possess arms or ammuni-
tion. Their marriage or burial, and the baptism of their
children, except in the parish church, was strictly pro-
hibited. And the fear of Popish tendencies \ievii^ \scl-

30 Hist^ iff tit ErngSsk Imstitmiums

bibed on the coacxzbHK* kd to a gienenl pn^dfattiiHi of
anT duldi^n iKing sent atscul witbout ^fecial license:
One TCascQable eiuctzxiient m^de sK thk time is still law,
namelT, tlwit nidolk in the ease of a Reman Catholic
haying the pacronage of a benistice. forbids him to exercise
ity and gives the appointment to one of the two uniTeisitieB
(3 JaL 1, c. 51 IhxExng the Commonwealth Ciomwell
pirof«ssed to allow fn>«?dom of worship to all except FlftpiBts
and PrelatistSy dedazizur ^ thit none he eompeOed to ocm-
fonn to the public leligion. br penalties or otherwise."
He extended toleration even to the Jews^ who were per-
mitted to letnm to the kingdom after having been banished
sLace Edw. I's reign. Bat he was sometimes led, bj
political considerations* into severe measures against Epis-
copalians whether of the Church of FngUml kx of that of
Eome. After the Eestoration the predominant church
party indulged in stem retaliation for the treatment thej
had received during the Commonwealth. The Corporation
Act (13 Cha. 2, St 2, c 1) impc^sed the reception of the
sacrament as a condition for holding anv muiucipal office.
At the same time a new Act of Uniformitr (14 Cha. 2,
c. 4) was passed, which prohibited all deviations from the
prescribed forms of prayer in churches, and obliged all
persons in orders, and all schoolmasters and others engaged
in tuition, to make a declaration that it was not lawful on
any pretence to take up arms against the king ; that they
abjured the Solemn League and Covenant; And that they
would conform to the liturgy of the Church of England.
This was followed by Acts for suppressing seditious con
yenticles, which inflicted imprisonment, and upon a third
conviction, seven years' transportation, on persons above
the age of 16 who should be present at any religious
meeting held otherwise than in accordance with the regula-
tions of the Church of England (16 Cha. 2, c. 4; 22

TJu People 3 1

Clia. 2, c 1). The Five Mile Act (17 Cha. 2, c 2) went
further, and required all Nonconforming ministers or
pi^eachers to take an oath devised four years previously, to
the effect that it was not lawful on any pretence to take
up anns against the king, and that they would never
attempt any alteration of the government in Church or
State. Those who did not take this oath were forbidden
to come within 5 miles of any parliamentary borough.
And all Nonconformists alike were declared incapable of
being schoolmasters, or of teaching in schools. Finally,
the Test Act (25 Cha. 2, c. 2) though, as its title stated,
it was primarily designed " for preventing dangers which
might happen from Popish recusants," and though it was
with that view actually promoted by the Protestant Dis-
senters, yet, by imposing the reception of the sacrament as a
requisite for holding any office civil or military, or receiving
any pay from the Crown, excluded these latter as well as
Itoman Catholics from all public posts. And a few years
later members of both houses of Parliament, as well as the
royal servants, were required to subscribe a declaration
against transubstantiation and the invocation of saints
(30 Cha. 2, st. 2), and thus Eoman Catholic peers were
disabled from sitting in the House of Lords and excluded
from the king's presence. The arbitrary assumption of
prerogative by James IL in dispensing with these laws
against Roman Catholics and Dissenters in individual in-
stances, and in suspending some of their provisions alto-
gether by the Declaration of Indulgence, constituted one of
his chief violations of the fundamental laws of the kingdom
which were formally condemned at the Revolution.

Liberty of the Subject. — In other respects, great
advances were made during the 17th century towards
securing the personal liberty of the subject against
stretches of the royal prerogative or of the power of tha

33 History of tlie English Institutions

^fovifrnrrK'nt The Petition of Right (3 Cha. 1, a 1)
Xi'r\U:i\ that, contrary to the Great Charter and to an Act
of Ivlvv. .'5, (liv<;r8 of the king's subjects had of late heen
ii/ijiriHoiHfd without any cause shown; and that when for
tlntir d<tliv<fninc(j tliey were brought before the Idn^s
jijHtir:<;H Ijy writ of habeas corpvs, and their keepers com-
iiiaiidcd to (ujftify tlie causes of their detainer, no cause
w/iM hIiowii 1)11 1 that tlicy were detained by the kin^s
H|K'^;ial coiiiniand signified by the lords of the privy
council, and yc.t they were returned back to prison withont
lK;ing chargf.d with anything to which they might make
annwcr a<;c(irding U) the law; and it prayed that no freeman,
in any such mann<;r as was before mentioned, should be
itnpriHoncd or (hitained. And in 1640 it was enacted
that, if any person was thereafter committed or impri-
«on<;d hy order of any Court pretending to have the
jurisdiction of the Star Cliamber, or by command and
warmnt of the sovcjrejgn in person, or of the privy council
(;r any of its nK^nlxirs, he should at once on application
to the, judges* of tiic King's liench or Common Pleas have
a writ oi hahcatt corjruji, directed to the person in whose
cust^idy lus was, to bring him into court, and certify the
cause of his imprisonment; and the judges should liberate,
bail, or remand the prisoner according to the circum-
Mtfinccjs (10 (Jha. 1, c. 10, s. 6). The method of vindi-
c^iting lilKjrty by means of a writ of habeas corpiis was
rerulerwl more effir:acious in 1679 by st. 31 Cha. 2, c. 2,
which is commonly known as the Habeas Corpus Act
This Act required that the sheriff or other officer to
whoso custody any person was committed should, upon
receiving a writ of habeas corpits, bring up the person
iKjfore the court or judge specified in the writ, within a
limited period, varying from three to twenty days accord-
ing to the distance to be traversed. It directed the Lord

The People 33

Chancellor, Lord Keeper, or any of the judges of the
Courts of King's Bench, Common Pleas, or Exchequer,
in vacation as well as in tenn-time, to grant a habeas
corpus in all cases of detention on a criminal charge,
except where the charge amounted to treason or felony, or
to being accessory to a felony ; and to liberate the pri-
soner, after binding him, upon his own bail and that of
sureties, to appear at his trial in due course. The Act
further declared that no person set at liberty upon a
habeas corpus should be again imprisoned for the same
offence, except by order of the court in which he was
bound to appear for trial If the trial of a person com-
mitted on a charge of treason or felony was unduly post-
poned, he too might be discharged upon bail. And
persons committed to one prison were not to be removed
into a different custody except by a formal writ Writs
of habeas corpus were to run and take effect in the coun-
ties palatine, cinque ports, and other privileged places,
and in the Channel Islands. Ko English subject was to
be sent as a prisoner to Scotland, Ireland, or the Channel
Islands, or beyond the seas, except in cases of transporta-
tion after conviction for felony.

Monopolies and Patents. — The absolute right of
the king to impose regulations on trade and commerce
at his own discretion was a prerogative which had been
early asserted and exercised. In Eliz.'s reign it took the
form of granting to favoured individuals exclusive mono-
polies of manufacturing or trading in certain articles, and
became so intolerable that in 1601 the Commons obtained
from Elizabeth a promise that it, as well as the practice
of offenders purchasing from the sovereign dispensations
from the penalties imposed on them by law, should be
discontinued. This promise was renewed by James L in
1610, but as it was not strictly observed, an A.c\i (^^\ ^«l.

BNG. INST. C

34 History of the English Institutions

1. c. 3) was passed in 1623, declaring all such monopolies
and dispensations void. In the case of the former, how-
ever, an important exception was made, which has proved
the foundation of our present law as to patents. It was
declared that the abolition should not extend to letters
patent, granting to the first inventor of nefio manufactures
the privilege of sole working or making of them for a
period not exceeding 14 years. Notwithstanding the
statute against monopolies, Charles L attempted to revive
them by estabhshing chartered companies with exclusive
privileges of exercising certain manufactures, as, for in-
stance, making soap and starch. The odium excited by
these new monopolies was, however, so great that he
judged it prudent in 1639 to revoke them all by pro-
clamation. Since then the only similar privileges granted
have been confined to places beyond the sea, as, for in-
stance, in the cases of the East India Company and Hud-
son's Bay Company.

Restrictions on the Press. — The protracted
struggles for liberty between the time of the Keformar
tion and the Eevolution effected positively nothing to-
wards the emancipation of the press. The privilege of
printing was in the first instance limited to members of
the Stationers Company under regulations established by
the Star Chamber in Mary's reign, which restricted the
nimiber of presses, and appointed a licenser of new pub-
lications; and Queen Elizabeth interdicted any printing
except in London, Oxford, and Cambridge. While the
Star Chamber existed, political discussion in print was
repressed by all the punishments which that Court was
capable of inflicting, and which included the dungeon,
the pillory, mutilation, and branding. Even under its
regime, however, the news-letter or newspaper sprang into
existence, the earliest example of it being the WeeMy

T lie People 35

New8^ first published on May 23d, 1622. After the fall
of the Star Chamber in 1640, tracts and newspapers were
prodigiously multiplied, and entered hotly into the contest
between the Crown and Parliament Thus more tlian
30,000 political pamphlets and newspapers were issued
from the press between 1640 and 1660. The Long Par-
liament did not, however, affect toleration in the matter.
It passed severe orders and ordinances in restraint of
printing, and would have silenced all royalist and prela-
tical writers. In fact, John Milton stood well-nigh alone
in that age in denouncing the suppression of books by
the licenser, which he affirmed to be the slaying of " an
immortality rather than a life."^ After the Restoration
the Licensing Act of 1662, a temporary statute which was
subsequently from time to time renewed, placed the entire
control of printing in the Government, confining it to
London, York, and the universities, and limiting the
number of master printers to 20. The Act also revived,
and vested in the Secretary of State, the power of issuing
general search warrants to the Government messenger of
the press for the purpose of discovering and seizing alleged
libels against the Government. Authors and printers of
obnoxious works were, under this Act, hung, quartered,
and mutilated, or exposed in the pillory and flogged, or
fined and imprisoned, according to the temper of the
judges; and their productions were burnt by the common
hangman. The Licensing Act was severely enforced
under James II.; but the restraint on printing was not
due to its existence alone. For when in Cha. 2's reign
it had been suffered to expire for a time. Chief Justice
Scroggs, and the other eleven common law judges, de-
clared it criminal, at common law, to publish any public

• See Milton's Areopagitica : a speech for the liberty of unlic^naft^,^
printing.

36 History of the English Institutions

news, true or false, witliout the king^s license. This
opinion was not judicially condemned till the time of
Lord Camden, Chief Justice of the Comihon Plea& A
monopoly of news being thus created, the public were
left to seek intelligence in the official smmnaiy of the
London Gazette,

Control over the Post. — Concurrently with this
power over the press, the Crown exercised the right of
opening and examining letters confided to its care for
transmission through the Post Office. Foreign letters
were in early times constantly searched to detect corres-
pondence with Rome and other Continental powers, and
during the Long Parliament foreign mails were searched
by orders of both Houses; and CromweU's Postage Act
expressly authorised the opening of letters in order "to
discover and prevent dangerous and wicked designs
against the peace and welfare of the commonwealtiL"
Charles IL interdicted by proclamation the opening of
any letters except by warrant from the Secretary of
State.

Aliens. — Notwithstanding the protection to foreigners
afforded by Magna Charta, the Crown continued to ckim
the right of ordering them to withdraw from the realm,
when it seemed expedient to do so. This right was acted
upon in Eliz's. reign in 1571, 1574, and 1575, but has
never been exercised since. The naturalisation of aliens
was restricted in Ja. Ts reign by the requirement as a
preliminary condition that they should take the oaths of
allegiance and supremacy, and partake of the Lord's
supper (7 Ja. 1, c. 2).

Defence of the Realm. — About the time of the
Reformation the old office of ealdorman, or military head
of the shire, was revived in the lord-lieutenants, then first
appointed by the crown with the same powers as had

The People 37

been previously given to the commissions of array
(see p. 24). St 4 & 5 Ph. k Mar. c. 2, reclassified the
freemen for military purposes, and altered the kind of
arms to be borne by each class; but this Act, and the
enactments of the Statute of Winchester on the subject
(see p. 17), were abrogated at the beginning of the follow-
ing century. In 1638 an unconstitutional order in coim-
cil was issued, charging the equipment of cavalry on
holders of land of a certain value. The final rupture
between Charles I. and the Parliament was caused by the
latter passing an ordinance conferring on themselves the
command of the militia, and the nomination of governors
of fortresses and lord-lieutenants of counties. This illegal
proceeding was expressly condemned after the Restoration,
when it was laid down that the sole supreme command of
the militia, and of all the forces by sea and land, and of
all forts and places of strength, was and ever had been, ])y
the laws of England, the undoubted right of the Crown,
and that neither House of Parliament could pretend to it,
nor could lawfully levy any war, offensive or defensive,
against the king (13 Cha. 2, st 1, c. 6; 14 Cha. 2,
c. 3). Provision was at the same time made for raising
an adequate militia in the different coimties, by requiring
persons possessed of landed estates to furnish a number
of men proportionate to the value of their property.

Army and Navy. — On the disbanding of the army
of the Commonwealth in 1660, General Monk's foot regi-
ment, called the Coldstream, and one horse regiment were
retained by the king, and a third regiment was formed
.out of troops brought by him from Dunkirk. Thus was
commenced, under the name of Guards, our present regular
army. They amounted in 1662 to 5000 men, but were
increased by James II. to 30,000. The regular discipline
of the navy also was, shortly after the Reatoiatioix, ixxaAft

38 History of the English Institutions

the subject of legislation ; the first Articles of War for
its regulation being established by an Act of 1661.

6. Slavery. — No form of slavery had existed in Eng-
land since the extinction of ^Tllenage about the close of
Eliz.'s reign; but nearly two centuries more elapsed
before it was declared absolutely illegal in the country.
It was, on the other hand, distinctly legalised in the
colonies by acts passed in the reigns of WilL 3 and
Geo. 2 ; and though in Queen Anne's reign we find an
opinion expressed by Lord Chief Justice Holt, that " as
soon as a negro comes into England he becomes free,"
and by Powell J., that " the law takes no notice of a
negro," the first positive decision to that effect was the
judgment of Lord Mansfield in the case of the negro
Somerset, in 1772. In 1799 the freedom of the colliers
and salters in Scotland, who had previously been in a
state of serfdom, was finally established; and, seven years
later, the Slave Trade was abolished.

Religious Disabilities. — ^The dissenters having largely
assisted in bringing about the Revolution, it was natural
that their political condition should be benefited by it
Accordingly, by the Toleration Act of 1688 (1 WilL &
Mar. c. 18) a concession was made to Dissenting ministers
who took the oath of allegiance to the sovereign, and an
oath in repudiation of the doctrine that princes excom-
municated by the Pope might be deposed or murdered,
together with a declaration that no foreign prince, prelate,
or potentate had or ought to have any ecclesiastical or
spiritual jurisdiction within the realm. The taking of
these oaths was long a necessary qualification for various
offices and professions in this country ; an additional oath,
in abjuration of the Stuart dynasty, and stigmatising
them as pretenders, being added after the close of WUl.

The People 39

3's reign. But by the Act just mentioned, dissenting
ministers who took these oaths (or who, if Quakers, made
a declaration to the like effect) and subscribed the
declaration required by 30 Cha. 2, si 2 (see p. 31), and
the 39 Articles (with certain stated exceptions, and with
a reservation, in the case of Baptists, as to the clause on
infant baptism in Art. 27), were allowed to officiate in
meeting-houses with doors unlocked, and were exempted
from serving on juries or in parochial or county offices;
and disturbers of their worship were to be punished.
Unitarians as well as Papists were, however, expressly
excluded from the benefit of the Toleration Act, and the
former were further disabled by st. 9 Will. 3, c. 35,
from holding any ecclesiastical, civil, or military office.
The toleration granted by st. 1 Will. & Mar. c. 18, was
somewhat restricted in the last four years of Anne's reign ;
but it was again conceded in Geo. Ts reign. And in the
following reign began the series of annual indemnity Acts,
by which persons who had exercised the office or followed
the professions, for which oaths or tests were required,
without taking them, were exempted from the penalties
incurred by so doing. These Acts, though nominally
dealing only with accidental omissions, became a means
of shielding deliberate evasions of the law.

Marriage Law. — On the other hand, a new and
oppressive restriction was, in 1753, imposed on Dissenters
by Lord Hardwicke's Marriage Act, which was designed
for preventing clandestine marriages. They had pre-
viously been allowed to be married in their own places of
worship ; but under that Act the marriages of all persons
except Jews and Quakers were required to be solemnised
in a parish church, by ministers of the Establishment,
and according to its ritual.

Boman Catholics. — As might have b^etv. ^'x.^^^XsA.

40 History of the English Institutions

after tli(3 conduct of James 11. and his adviseis, the lam
against liouian Cathohcs were at the Eeyolntion made
more, severe. The Act 30 Cha. 2, st 2, which had been in-
tended to be only temporary, was continned in force
against them ; they were declared incapable of piiicha»-
ing or inheriting lands; with a few specified exceptions,
they were to be banished from London and Westminster;
and within ten miles of those cities were to keep no
horses above the valne of £5, nor arma Moreover, a
Popish priest was to be punished for exercising his func-
tions by perpetual imprisonment These severe laws
were never thoroughly carried out, notwithstanding that
the vigoroiis execution of them was enforced by royal
proclamation in yu(»en Anne's reign, by Act of Parlia-
ment after the rebellion of 1715, and again by royal pro-
clamation after that of 1745.

Progress of Toleration. — In proportion as the appre-
hensions of i)olitical danger from those who were dis-
affected towards the Established Church passed away,
measures for the relief of their disabilities were intro-
duced. Thus in 1779 Protestants who declared their
belief in the Scriptures were relieved from the necessity
of su})8cribing the 39 Articles in order to have the benefit
of the Toleration Act, and were enabled to keep schools
and teach. Nor was the relaxation of the law entirely
confined to Protestant Dissenters. An Act was passed, in
1778, and another in 1791, by which various penalties on
Roman Catholics were remitted in the case of those who
took the oath of allegiance and acknowledged the king's
temporal supremacy — peers who did so being relieved
from the banishment from the king's presence inflicted by
30 Cha. 2, st. 2, — and their worship was permitted under
certain restrictions. These measures, however, did not
become law without considerable difficulty, and the passing

The People 41

of the Act of 1778 led to an agitation for its repeal, whicli
in 1780 caused the disturbances in London known as the
Lord George Gordon Riots. Meanwhile the political disa-
bilities of the Roman Catholics remained, though, in 1801,
an increasing difficulty was thrown in the way of their con-
tinuance by the union of Great Britain with Ireland, where
the Romish religion prevailed. After that event Mr Pitt
and his colleagues were of opinion that Roman Catholics
might be safely admitted to office, and to the privilege of
sitting in Parliament; and that Dissenters should at the
same time be relieved from civil disabilities. Mr Pitt
also projected the idea of attaching the Roman Catholic
clergy to the State, by making them dependent upon the
public funds for a part of their provision and subject to
State superintendence, for which purpose the Lish Roman
Catholic bishops had consented to allow the crown a veto
on their nomination. But George III., was irrecon-
cilably opposed to any concessions of the kind, and the
difference of opinion between him and his prime minister
on the subject led to the resignation of the latter. The
question, however, continued to be agitated, and occasioned
the fall of another ministry, that of Lord Grenville, in
1807. Four years later the king became permanently in-
disposed, and during the regency considerable advances
were made in the removal of religious restrictions. In
1811, freedom of worship was practically, though not by
any legislative enactment, conceded to Roman Catholic
soldiers. It was agreed among the members of Lord
Liverpoors administration, on taking office in 1812, that
Roman Catholic emancipation should be an open ques-
tion. In that year an Act was passed which rendered
it unnecessary for persons officiating in certified meet-
ing-houses to take the oaths and make the declaration,
unless required to do so by a justice of the peac^*, axASxv

42 History of the English Institutions

the following session the disabilities under which Unita-
rians laboured were removed. In 1817, the Military and
Naval Officers' Oath Act virtually opened all ranks in the
army and navy to Roman Catholics and Dissenters. At
length, towards the close of Geo. 4's reign, throughout
the whole of which the question had been annually con-
tested in Parliament, an Act repealing the Test and Cor-
poration Acts and the Eoman Catholic Relief Act, were car-
ried, — the one in 1828 and the other in 1829. The former
(9 Geo. 4, c. 17) abolished the taking of the Lord's supper^
as a test for any of the offices or situations for which it
had previously been required. The latter (10 G^o. 4, c.
7), while it continued the incapacity of Roman Catholics
to act as regent, or to be Lord Chancellor or Lord Keeper,
or to hold certain positions in Scotland and L^eland,
abolished in all other cases the necessity of making the
declaration against transubstantiation and the invocation
of saints, and permitted Roman Catholics to vote at par-
liamentary elections and sit in either House of Parliament,
and to hold civil and military offices, on taking the oath
of allegiance, with a repudiation of the doctrine that
princes excommunicated by the Pope might be deposed or
murdered. The Act contained stringent provisions for
regulating the residence of Jesuits and members of other
male religious orders of the Church of Rome then within
the kingdom, and forbad, with certain exceptions, under
penalty of banishment, the future ingress of any such
persons or the admission of any person within the king-
dom into those orders. These restrictive provisions have,
however, not been enforced, and are practically a dead
letter. Li 1832 an Act was passed placing Roman
Catholics, in respect of their schools, charities, and places
of worship, and the persons employed about them, on the
same footing as Protestant Dissenters.

The People 43

Liiberty of the Subject. — The passing of the Habeas
Corpus Act did not secure for the personal liberty of
Englishmen complete protection from irregular interference
on the part of the Government. In the first place, the Act
itself was frequently suspended during the first few years
after the Eevolution. Nor can we wonder that it should
have been so during the rebellions of 1715 and 1745. At
the time of the American war of independence, the king
was empowered to secure persons suspected of high treason
committed in America or on the high seas, or of piracy;
and in 1794 the political excitement occasioned by the
French Revolution and the troubles on the continent was
considered sufficient to warrant another temporary sus-
pension of the Act. This suspension was continued by
periodical renewals till 1801, when the termination of the
suspension was accompanied by an Act of Indemnity to
all persons who since 1793 had been concerned in the
apprehension of persons suspected of high treason. The
last occasion of the suspension of the Habeas Corpus Act
in Great Britain was in 1817; but it has since been more
than once suspended in Ireland.

General Warrants. — Besides, however, the suspen-
sion of the Habeas Corpus Act, another mode of inter-
ference with the liberty of the subject was practised by
the Government in the early part of the 18th century.
When an offence had been committed against the Govern-
ment, general warrants were issued for the apprehension,
not of individuals specified by name, but of any persons
whom the public officers might, on investigating the
matter, suspect of having been concerned in it. The last
case in which the practice was resorted to was upon the
publication of No. 45 of the North Briton, written by the
celebrated John Wilkes, and containing a bitter attack
upon the Government A general warrant was \s>s\x"&^ iox.

44 History of the English Institutions

the apprehension of all persons concerned in the anthor-
ship, printing, and publication of it, under which 49
persons, including Wilkes himself, were arrested on sus-
picion and committed. Wilkes, being a member of the
House of Commons, was released by a writ of habeas
corpus, and actions were immediately brought by him
against the Under-Secretary of State, and also, under his
directions, by the committed printers against the mes-
sengers who had arrested them. In the course of these
latter actions. Lord ^Mansfield and the other judges of the
King's Bench pronounced the warrant illegal, declaring
that no degree of antiquity could give sanction to a
usage bad in itself {Money v. Leach, 1 W. Blackst
555). This decision gave a death-blow to general war-
rants, notwithstanding the refusal of the Lords in the fol-
lowing year (a.d. 1 766) to concur in a declaratory bill in con-
demnation of them, which had been passed in the Commons.

Revenue Laws. — But while liberty was thus vindi-
cated in one direction, considerable infringements were
inflicted upon it in another, by the increasing severity
of the revenue laws; especially in the department of
excise, not only through the powers given to the excise
officers, for the purpose of preventing frauds, of entering
and searching, in many cases by night as well as by day,
the houses of dealers in exciseable goods, but also through
the summary method of procedure against alleged offenders
before commissioners of excise or justices of the peace,
without a jury. And persons punished by fines were,
like others who owed debts to the crown, subject to life-
long imprisonment in case of failure to pay.

Debtors. — The liability just mentioned was in truth
only in keeping with the hardships of the general law of
debtor and creditor which prevailed at this time. A
debtor, at any time after proceedings had been com-

The People 45

menced against him by a creditor, real or pretended, and
before tbe debt was legally proved, was liable to be
arrested on mesfne process,'^ as it was called, and thrown
into prison, where he remained until the cause was tried,
unless he could find sufficient bail. By Acts of Geo. 1
and Geo. 3 arrest on mesne process was restricted to the
case of debts exceeding £10, and this limit was after-
wards raised to £15, and ultimately to £20. But after
a debt, however small, was proved against a person, he
was liable to imprisonment in the Fleet or Marshalsea
prison until payment the horrors of these prisons were
so great as to lead in 1772 to the establishment of a
charitable society, called the Thatched House Society, for
purchasing the liberty of poor debtors detained there, by
payment of their debts. So trifling were the amounts for
which the majority were suffering incarceration, that the
Society, in twenty years, were able to release 12,590 by
an average payment of 45s. per head. Temporary Acts
for the relief of Insolvent Debtors were passed from time
to time in Queen Anne's reign, and again in the early
part of Geo. 3's reign; but it was not till 1813 that in-
solvents were placed under the jurisdiction of a special
Court, and became entitled to seek discharge on render-
ing a true account of aU their debts and property — a mea-
sure which led to the liberation of 50,000 debtors within
the succeeding 1 3 years. • A tremendous power of impri-
sonment was still wielded by the Court of Chancery, as a
punishment for contempt or failure to perform its decrees,
the result in some cases of obstinacy, but in others
of mere poverty and inability. In the early part of the
present century several cases occurred of persons who,
failing to purge their contempt, died in prison after a
confinement of upwards of 30 years.

7 See Index and Glossary.

46 History of t/ie English Institutions

Political Rights. — The Declaration of Eights at the
time of the lievolution (ratified by the Bill of Rights, 1
WilL & Mar., sess. 2, c. 2), went beyond a mere establiah-
nient of j^ewonal liberty. The right of Protestant subjects
to have arras for their defence, suitable to their conditions
and as allowed by law, was asserted, by way of condemna-
tion of the conduct of James XL in having caused several
good subjects to 1^ disarmed, while Papists were both
anned and employed contrary to the law. Again, inasmuch
as that monarch had committed and prosecuted the seven
bishops for ]>etitioning hira that they might be excused
from concurring in the dispensing and suspending powers
assumed by him, the Declaration asserted that subjects had
a right to petition the king, and that all commitments and
prosecutions for such petitioning were illegal The practice
of putting a pressure upon the executive otherwise than
through the medium of Parliament, and of endeavouring to
influence Parliament itself on particular subjects by means
of petitions, public meetings, and poHtical agitation, may
almost be said to date from the 18th century. It is true that
the right of fietitioning Parliament for the redress of per-
sonal and local grievances had existed from the earHest
time, and political petitions had been presented to the
Long Parliament, which had encouraged or punished the
petitioners according as their sentiments agreed or were at
variance with its own opinions. But an Act of 1661 had
prohibited petitions to the king or Parliament for altera-
tions of matters established by law in Church or State,
and it was not till after the Revolution that the practice
of petitioning Parliament on matters of general poHtical
interest became usual In 1701 the Commons voted the
Kentish petition scandalous, insolent, and seditious, tend-
ing to destroy the constitution of Parliament, and to sub-
vert the established government of the realm ; and they

Tlie People 47

committed five of the petitioners to prison till the end of
the session. This petition had implored them to tender
bills of supply to the king, and enable him to assist his
aUies before it should be too late. Several petitions were
presented in 1716 against the septennial bill; and in
1721, praying for justice on the directors of the South
Sea Company, after the bursting of the bubble. And in
1753 the city of London presented a petition against the
bill for the naturalisation of the Jews, which however
met with some animadversion in the House. The peti-
tions in 1779 for reform in Parliament, and the petitions
for the abolition of the slave trade in 1787, attained a
number far in excess of what had ever been previously
known; and those against the slave trade exercised a
considerable influence upon Parliament. The practice^
which prevailed in the House of Commons at that time,
and down to a recent date, of allowing discussions on any
petitions which might be presented to have precedence
over the matters set down for consideration, however im-
portant, proved exceedingly inconvenient when towards
the end of Geo. 3's reign petitions became enormously
multiplied. With regard to petitions against bills im-
posing duties or taxes, it had early become a settled
rule that they should not be received. But even on
this subject public meetings and agitations might bo
brought to bear; and an extensive resort to these methods
forced Sir R Walpole to withdraw his excise scheme in
1733. The repeal of the Act for the naturalisation of
the Jews was produced in a similar way in 1754, and
the riots of the Spitalfields silk weavers in 1765 led to
an Act prohibiting the importation of foreign silks. In
no long time political agitation became reduced to a
system, by the establishment of societies, such as the
Protestant Association under the presidency of Loid G^crt^^i

48 History of the English Institutions

Gordon, and the. Association for the abolition of the
slave trade in 1787. Upon the outbreak of the Fiench
Revolution, several democratic and revolutionary associa-
tions, called corresponding societies, were formed in
England. Although the acquittal of Home Tooke and
other leading members of these societies in 1794 proved
that their proceedings did not go to the length of treaaon,
their existence was deemed incompatible with the public
safety. Accordingly in December 1795 an Act was passed
for the prevention of seditious meetings, which prohibited
under severe penalties the holding of meetings of more than
50 persons (except county meetings and other meetings re-
cognised by the law), for deliberating on any public griev-
ance, or on any matter or thing relating to any trade,
manufacture, business or profession, or upon any matter
in Church or State, except under certain stringent condi-
tions. The same Act declared lecture and debating rooms
to be disorderly places, unless held under a license for
one year from the justices at quarter sessions, which they
were empowered at any time to revoke. These provi-
sions as to lecture rooms, were repeated in 1799, when
all the corresponding societies were absolutely sup-
pressed (39 Geo. 3, c. 79). Meanwhile voluntary associa-
tions were, on the other hand, established to assist the
government in repressing sedition. The outrages of the
Luddites in the manufacturing districts (a.d. 1811—1814)
arose from the prevailing distress, and had no political
significance; but in 1817 it was deemed necessary to
renew the measure of 1795 against seditious meetings.
The Act then passed (57 Geo. 3, c. 19), the material
parts of which, like those of the Act of 1799, are still
law, contains a clause prohibiting the meeting of more
than 50 persons, or the convening of such a meeting; in
any square or street in Westminster within one mile of

Tlu People 49

Westminster Hall for the purpose of considering or pre-
paring an address or petition to the king or regent, or to
both or either of the Houses of Parliament, for the altera-
tion of matters in Church or State, during the sitting of
Parliament or of any of the Courts at Westminster HalL

The Six Acts. — In addition to the measures just
noticed, the state of the country towards the end of 1819
ocGCisioned the passing of what were known as the Six
Act& The first of these (60 Geo. 3 & 1 Geo. 4, c. 1),
which is still law, prohibited the training of persons to
the use of arms, and the exercise of them in military
evolutions under the penalty of transportation or impri-
sonment on the persons training, and of fine and imprison-
ment on those trained. The second (c. 2), which was
only a temporary Act, and has expired, authorised justices
of the peace, in certain disturbed northern and midland
counties, and any others which should thereafter be de-
clared by proclamation in council to be in a disturbed
state, to seize and detain any arms collected or kept for
purposes dangerous to the public peace. The object of
the third (c. 4) was the prevention of delay in the admin-
istration of justice in cases of misdemeanour. The fourth
(c. 6, " for more effectually preventing seditious meetings
and assemblies ") which was to continue in force for five
years, contained provisions very similar to those of the
Act of 1795. The remaining two wiU be noticed here-
after (see pp. 60, 53). Owing partly to these measures, and
partly to an improved spirit among the people, the reign
of G^o. 4 was not disquieted, at least in England by the
holding of seditious meetings. But the power ot political
agitation made itself triumphantly felt in procuring the
passing of the Keform Act at the commencement of the
next reign.

Ldberty of the Press. — ^After the Revolu^iioTL ^Jc^a

HNC. ItiST. Tl

so History of t/te English Institutiofis

Commons refused to renew the Licensing Act, whicli
accordingly expired in 1695. But two distinct methods
were employed by the Government for restraining the
free expression of opinion through the press : firsts the
stamp duty on newspapers; and secondly, the law of
libeL Newspapers assumed their present form, combining
intelligence with political discussion, in the reign of Anne;
and the Daily Courant, the first daily paper, was started
in 1709. When during that reign the press became an
instrument of party, the dominant party exerted itself to
repress the publications which took the side of the oppo-
sition. Proposals were even made for reviving the
Licensing Act ; but the stamp duty on newspapers and
advertisements was devised instead, avowedly for the pur-
pose of repressing libels. This policy being found effectnal
in limiting the circulation of cheap papers, was carried
further in subsequent reigns. The newspaper stamp was
gradually raised to f ourpence, and was eventually extended,
by St. 60 Geo. 3 & 1 Geo. 4, c. 9 (the last of the Six
Acts), to cheap political tracts published periodically.
The advertisement duty was also increased during the
reign of Geo. 3. But a far more important engine in the
hands of the Government for restraining political discus-
sion existed in the law of libel. This law was rigorously
enforced in the first two reigns after the Revolution.
Under Geo. 1 and Geo. 2 the press generally enjoyed a
greater amount of toleration, owing, not to a diminution
of its influence, which on the contrary was yearly increas-
ing, but in great part to the fact that Sir Robert Walpole
was personally indifferent to its attacks, and avowed his
contempt for political writers of all parties. At the com-
mencement of the reign of Geo. 3, a sudden advance in
the freedom of discussion occasioned a renewal of the con-
flict between it and the Government The king^s nnpo-

The People 5 1

pular minister, Lord Bute, was the subject of furious
attack, the lead in which was taken by the North
Briton, conducted by Wilkes. Contrary to the practice
which had previously been followed, even by the Annual
Register, of avoiding the use of names and giving merely
the initials of ministers and others in treating of domestic
events, this paper assailed the foremost statesmen by
name, whilst its insinuations touched even the king him-
self. On the appearance, in April 1763, of No. 45 of the
North Briton, commenting upon the king's speech at
the prorogation, and upon the unpopular peace recently
concluded, a general warrant was issued for the discovery
and arrest of the authors and printers ; and an information
for libel was filed against Wilkes in the King's Bench, in
which a verdict was obtained {Rex v. Wilkes, 4 Burr.
2527, 2574). The illegality of this general warrant for
the apprehension of individuals has been already noticed.
About the same time (a.d. 1765), Lord Camden, as Chief
Justice of the Common Pleas, decided in the case of
jEntick V. Carrington (2 Wils. 275), that a Secretary of
State had no power to issue a general search warrant for
the discovery and seizure of a person's books and papers.
It was true that many such warrants had been issued since
the Eevolution, but he wholly denied their legality. The
practice had originated in the proceedings of the Star
Chamber. After the abolition of that court, it had been
revived and authorised by the Licensing Act of Cha. 2,
in the person of the Secretary of State; but its con-
tinuance, after the expiration of that Act, was altogether
unjustifiable. The further inequitable measures taken by
the Government against Wilkes raised a burst of public
feeling in his favour, and blinded the people to the justice
of the verdict and sentence in the King's Bench against
him. The mode of procedure in cases of State hbel was

52 History of tlu English Institutions

also calculated to render the Government prosecutions
unpopular. On an information by the Attorney General,
the accused was at once arraigned vdthout any previous
finding of a grand jury, such as preceded ordinary criminal
trials. Moreover, contrary to the presumption which
prevailed in other criminal cases, a publisher was held
criminally answerable for the actions of his servants, unless
it was proved that he was neither privy nor assenting to
the publication of the libeL And the judges decided
that exculpatory evidence on behalf of the publisher was
inadmissible, holding the publication of a libel by a pub-
lisher's servant to be proof of his criminality. Lord Mans-
field further laid down that it was the province of the judge
alone to decide as to the criminality of the libel, thereby
removing this question from the province of the jury,
who were merely called upon to determine as to the fact
of its publication. The frequency of Government pro-
secutions for libel, and the tendency of the judges to
adopt an unfavourable construction of the language com-
plained of, induced ^Ir Fox, in 1791, to bring in a bill,
similar in terms to one for the introduction of which leave
had been refused twenty years previously. This bill pro-
vided that on a trial or information for libel the jury
might give a general verdict on the whole matter, and
should not bo directed to find the defendant guilty merely
on proof of the publication of the alleged libel by hini^
and of the sense ascribed to it in the indictment or infor-
mation. The bill passed the Commons, but was lost in
the Lords. It however became law in the following
session (32 Geo. 3, c. 60). In the course of 1792 a royal
proclamation was issued, warning the people against
wicked and seditious writings, and commanding magls-
strates to discover the authors, printers, and promulgators
of such writings. Similar proclamations had been issued

The People 53

in the reigns of Anne and Geo. 1; and on tliis occasion,
though denounced by Fox and the opposition, it met with
the approval of both Houses of Parliament, and was
followed by numerous prosecutions of publishers. On
the other hand, the Government refused to jiccede to tlic
demands of Napoleon, who, as First Consul, in 1802, after
the peace of Amiens, irritated by the stricturea of Kii^lish
newspapers on French affairs, required that certain uiicon-
stitational restraints shoidd be placed upon them. One
libeller of the French government was however tried and
convicted under the existing law, and only escaped punish-
ment through the renewal of hostilities. Meanwhile the
rqpfession of libels against the home Government con-
tinued. In 1808 power was given to the judges of the
King's Bench to commit or hold to bail persons charged
with publishing libels, as well as with other offcinces,
before indictment or information. In 1817 Lord Sid-
mouth sent a circular letter to the lord-lieutenants of
counties, requesting them to communicate to the justices
at quarter sessions the opinion of the law officers of the
crown, that a justice might issue a warrant to appre-
hend any person charged on oath with the publication of
a blasphemous or seditious libel, and compel him to give
bail to answer the charge ; and directing that sellers of
pamphlets or tracts should be considered as subject to the
Pedlars' Act, and accordingly liable to punishment if they
sold without a license. Two years later, the fifth of the
Six Acts (60 Geo. 3 & 1 Geo. 4, c. 8, " for the more effec-
tual prevention and punishment of blasphemous and sedi-
tious libels"), provided that on verdict or judgment by
default for composing, printing, or publishing any blasphe-
mous or seditious libel, the seizure and detention might be
ordered of all copies of the libel foimd in the possession
of the convicted person or any other peTson s^ecAe^m

54 History of the English Institutions

thr? or(l<;r ; and on a wjcoiid conviction, the person might
(Mth(;r Ix! (jondc-inntul to suffer the punishment for high
niiHd(;iiio,anoiirH, or be iMinished from the British dominions
f(»r Huch tcnn of ycjars an the Court should order. This
puniHlinic.nt of banishment was, however, repealed eleven
yi'-ars lat<T.

Control over the Post. — The power already noticed
of opciiinj^ hitti^PH w-nt through the post was confirmed by
th(i I'oHt-offKUi A(rt of 1710, which jMirmitted a Secretary
of Stjit<5 to Ihhuc warrants for their detention and inspec-
tion. This power was continued by later statutes ; and
in I7K3, the Lon I -Lieutenant of Ireland was entrusted
witJi a Hiniilar authority. During the rebeUion of 1745,
and at other periods of pul)lic danger, letters were exten-
nively ojH'.ne,(I. The? object of the warrants was not
n?Htrict<'(l to tlie dfjt^iction of crimes or practices dangerous
to the, Statti ; tliey W(;re- constantly issued for discovery of
forgr^ry arn! otheT olfent^es, on the application of persons
concerned in the apprehension of offenders.

Aliens. — Jealousy of the foreigners whom William TIT.
had brought over with him and exalted to high positions
in tlifi State, and the fear that kings of the House of
IJrunswitjk, if tlujy mounted our throne, would follow his
exairiple, hid to the insertion in the Act of Settlement
(12 <fe 13 Will. 3, c. 2), of a clause enacting that after the
acce,HHicm of the House of Brunswick to the throne, no
jMjrson l)oni out of the British dominions, although
naturalised or made a denizen (unless born of English
parents), should be capable of being a privy councillor or
member of either House of Parliament, or of holding any
civil or military office, or receiving any grant of land from
the Crown. And by way of insuring the observance of
these pi-o visions, it was enacted, in 1 Geo. 1, that no
Bill for the naturalisation of any person should thereafter

The People 55

be received in either House of Parliament, unless it con-
tained a clause expressly disabling him from occupying
the prohibited posts. The object of this enactment was
however in special cases occasionally superseded by a
somewhat circuitous process. When it was desired that an
individual should, upon his naturalisation, receive the
prohibited rights, an Act was first passed permittuig the
introduction into Parliament of a Naturalisation Bill with-
out the disabling clause, and the Bill was then introduced,
which on becoming law gave the desired rights. In
1708 an Act was passed naturalising all foreigners who
took the oaths of allegiance and abjuration, made the
declaration against transubstantiation and invocation of
saints, and received the Lord's supper ia some Protestant
congregation in England. This measure was, however,
repealed three years later. But in the reigns of Geo. 2
and Geo. 3 many Acts were passed conferring naturalisa-
tion as a reward for services rendered to tlie State;
service, for instance, as sailor in an English ship in time
of war or in the whale fishery, and military service, or
residence in America. In 1753 an Act was passed per-
mitting the naturalisation of Jews without taking the
sacrament as required by st. 7 Ja. 1, c. 2. It was, however,
repealed by the very first Act of the following session, on
the ground that occasion had been taken from it "to
raise discontents, and to disgust the minds of many of his
Majesty's subjects;" and it was not until 1825 that the
requirement of st. 7 Ja. 1, c. 2, was finally abrogated, and
the reception of the Lord's supper was declared unneces-
sary as a condition for naturalisation. Other disabilities
on foreigners were imposed in the latter half of the 18th
century. In 1774, it was enacted that no bOl for the
naturalisation of any person should be received b> either
House of Parliament, unless it contained a c\awa^ ^^-

56 History of the English Institutions

abling the person from having any of the immtmitieB or
indulgences in trade belonging to natural bom sabjects
by treaty or otherwise, until after seven years' subsequent
continuous residence in the kingdom. And the number
of foreigners, who came here for refuge at the time of the
French Revolution, led to the passing, in 1793, of an Alien
Act, placing restrictions for one year on their arrival and
residence in this country. At the same time it "was made
treason for any resident in Great Britain, not only to
supply material aid to the enemy, but also during the
war to invest money in land in the French dominions ;
and any subjects going there without royal license, and
any residents in Great Britain, whether subjects or
foreigners, who insured French ships or goods, were made
liable to imprisonment The Alien Act was renewed
from time to time during the war; but its provisions were
temporarily relaxed on the establishment of peace in 1802.
England then resumed her character of an asylum for re-
fugees, and our Government, except in the solitary case of
3^L Georges, who had been concerned in circulating papers
hostile to the French authorities, refused the demand
of the First Consul, that we should remove out of British
dominions all the French princes and their adherents^
together with the bishops and men of political notoriety.
The provisions of the Alien Act were again relaxed after
the peace of 1814, and were finally abandoned in 1826,
when a simple registration of aliens was adopted in their
place.

Defence of the Beabn. — ^The practice of impress-
ment for compulsory military service, which had arisen
out of the original duty of all feudal tenants to serve in
the army, was, as we have seen (p. 26), condemned by
an Act of the first session of the Long Parliament It
was, however, occasionally resorted to even after the E^

Tfu People 57

volution, but only under the authority of Parliament, in-
stead of, as previously, under that of the royal prerogative.
Thus, in 1779, during the American War, the Legislature
permitted the impressment of all idle and disorderly per-
sons who were not either following a laVful trade, or in
possession of substance sufficient for their maintenance.
Since that time, however, voluntary enlistment, encour-
aged by the offer of bounties, has proved sufficient for
the recruiting of our land forces.

Impressment for the navy, on the other hand, was prac-
tised down to a much later period. It was, properly speak-
ing, restricted to seamen, but landsmen were often seized
under the pretext of being sailors in disguise. And in
great emergencies the customary exemptions from liability
to it were temporarily withdrawn : as for instance, in 1779 ;
and again in 1795, when the impressment into the navy
of able-bodied rogues and vagabonds and persons following
no lawful calling was expressly authorised.

Standing Army. — By one of the clauses of the De-
claration of Eights, it was laid down that the raising and
keeping of a standing army within the kingdom iu time
of peace, except with consent of Parliament, is against law.
This assertion has since been annually repeated in the
preamble to the Mutiny Act, which also declares that "no
man can be forejudged of life or limb, or subjected in
time of peace to any kind of punishment within the king-
dom by martial law, or in any other manner than by
judgment of his peers, and according to the known and
established laws of the realm." Yet, since (as the Act
affirms) it is adjudged necessary by the Sovereign and by
Parliament that a body of forces should be maintained for
the safety of the kingdom and defence of the possessions
of the crown, and since it is requisite for retaining the
forces in their duty, that an exact discipline a\ia>3l<\ \i<^

58 History of tJie English Institutions

observed, and that soldiers who mutiny or stir up sedition,
or desert, or are guilty of breaches of discipline, should be
brought to a more exemplary and speedy punishment than
the usual fonns of the law will allow, the Act proceeds
to authorise the sovereign to make Articles of "War for the
government of the army, and to empower courts-martial
to inflict death and other punishments on soldiers for
offences against the Act or the Articles made under its
authority. Moreover, after reciting the provisions of the
Petition of Right, and of st. 31 Cha. 2, c. 1, against the
quartering and billeting of soldiers, the Act suspends those
proWsions, and expressly permits billeting in inns and
victualling houses. The first ^lutiny Act was passed in
1688. It was to continue in force for one year only — a
precedent which has ever since been followed as to the
British Isles; though for the more distant parts of the
Empire the operation of the Act is extended to a some-
what longer period. The maintenance of the army is
thus absolutely dependent upon the will of Parliament;
for if in any year Parliament were not to be summoned, or
were to refuse to pass a new ^lutiny Act, the means of
maintaining its discipline would cease. But notwithstand-
ing this, so great at the time of the Revolution was the
jealousy with which any standing army was r^arded, that
in 1697, after the Peace of Ryswick, the Commons voted
that all the troops raise<l since 1680 should be disbanded,
thus reducing the army to 7000 men, a number which
they were Avith difficulty persuaded to increase to 10,000.
From the reign of Geo. 1 till the close of the century the
ordinary peace establishment, including the garrisons of
^Minorca and Gibraltar, but exclusive of the troops in
Irelanrl, and, of course, of the East India Company's army,
was about 17,000 men. The Irish force was fixed in
Will 3's reign at 12,000, and in Geo. 3's reign at 16^000

TIu People 59

men. The same jealousy of a standing anny led in 1735
to the passing of an Act which directed that no tru()i)8
should come within 2 miles of any place except the
capital or a garrison town during a pariiamentary election ;
and in 1741, the military having heen called in to quell
a disturhance at a Westminster election, it was resolved
by the Commons " that the presence of a regular body of
armed soldiers at an election of members to serve in Parlia-
ment is a high infringement of the liberties of the subject,
a manifest violation of the freedom of elections, and an
open defiance of the laws and constitution of this king-
dom;" and the persons concerned in the matter liaving
been ordered to attend the House, received on their knees
a very severe reprimand from the Speaker.

Militia. — The militia was remodelled in 1757, when a
certain number of men was fixed to be raised in each
county. They were to be chosen by ballot to serve for a
limited number of years, and during that time were sub-
jected for a certain portion of the year to military tmining;
and when called out, were to be under martial law. They
were to be officered by the lord-lieutenant, deputy lieu-
tenants, and other landholders of the county, and were
not to be compelled to march out of their county, except
in case of invasion or rebellion. In 1802 the IVIilitia
Laws were consolidated by st. 42 Geo. 3, c. 90, but the
system remained substantially the same as that established
in 1757. In addition to the regular nulitia, bodies of
volunteer cavalry called yeomanry, and of volunteer in-
fantry, were raised during Geo. 3's reign, to repel the
threatened invasion of this country by the French; and
when embodied were subjected to certain statutory regula-
tions. And thjBse troops being considered insufficient for
the defence of the realm, a supplementary force called
Fencibles was established in 1803, and aaottiet ^ni^^T Wi*^

6o History of the English histitiitions

name of the Local !Militia in 1808. The iiumT)er of the
latter in ciich county, together with its volimteers and
yeomanry, was not to exceed 6 times the number of the
repfiil'ir militia for the county, to which the force bore a
strong resemblance in respect of its regulations. Upon
the conclusion of the peace the volunteer infantry were
disbanded, but the yeomanry were still kept on foot. In
1816 an Act was passed empowering the king, by order in
council, to suspend the balloting for an enrolment of the
local militiii, which was forthwith done; and in 1829
the practice was commenced of passing annual acts for
suspending the ballot for the regular militia.

6. Extension of Freedom. — Since the Reform Act
of 1832 there has been an increasing tendency to abolish
all political distinctions between different sections of the
community, as weU as aU needless restrictions on indi-
vidual freedom and on the expression of opinion whether
by word of mouth or in print On the 1st of Aug.
1834 slavery was abolished bylaw throughout the British
dominions. And the law of imprisonment for debt^
which, notwithstanding the mitigations of it already
noticed, stiU remained in an unsatisfactory state, under-
went further modifications, the necessity for which is
shown by the fact that in 1861 they resulted in the libera-
tion from the Queen's Bench Prison of a debtor who had
been there since 1814. Moreover the Bankruptcy Laws
were subjected to considerable alterations, particularly in
1849 and 1861. Those made on the last occasion were
found by experience to have rendered the law unduly
favourable for the debtor, allowing him to rid himself of
his past debts on too easy terms. A new Bankruptcy Act
(32 & 33 Yict c. 71) was therefore passed in 1869,
which simplified the proceedings in cases of bankruptcy,

The People 6 1

and diminislied the facility with wliich a Ixiiiknipt could
obtain a complete discharge from all his ohli«,aiti<>ii8. In
the same year all arrest and imprisonment for (l(i}>t, or <le-
fault in payment of money, were expressly aholisluMl excej^t
in a few specified cases ; hut as a counteri)oist; to tliis in-
dulgence to debtors, it was enacted that persons Avho com-
bined fraud with their indebtedness, should, in certiiin
cases, be deemed guilty of a misdemeant)ur and be i)unish-
able with imprisonment for one or two years Avith or
without hard labour.

Religious Disabilities. — The principal rolijrioiis dis-
abilities had already been swept away, but some of less
importance still remained, to fonn the sulyect of le«,qslati( »n
during the late and present reigns. In 1833, ^Mr Pease,
the first Quaker who had been elected to the House of
Commons for 140 years, was allowed to take his seat on
making an affirmation in lieu of an oatli. In the same
year two acts were passed, allowing Quakers, ^Moravians, and
Separatists to make affirmations instead of taking oaths
in aU cases where an oath was required by law. In 1836,
st 6 & 7 WilL 4. c. 85, removed the grievance of Dis-
senters as to marriage, by permitting under certain re-
strictions the solemnisation of marriages in their places
of worship, and also before the superintendent district
registrar of births, deaths, and marriages at his office.
It also allowed in certain cases churches and chapels of
the Church of England, not being parish churches, to be
licensed for the celebration of marriages. And the estab-
lishment in the present reign of cemeteries, with a chapel
for Dissenters, and with part of the ground left uncon-
secrated for their use, has given them facilities for conduct-
ing their burials according to their own form. In the years
1844—1846. the Penal Laws against Roman Catholics,
Dissenters, and Jews were expressly repealed ; and Je\f9»

62 History of the English histitutions

were exempted from making the declaration imposed lay
9 Geo. 4. c. 17 (wliicli was to be made " on the true faitii
of a Christian"), and were thus again enabled to hold
muiii(;ipal oliices, to which before the passing of that
Act they had, together with Dissenters, been admitted
under cover of tlie annual Indemnity Acts. Twelve
years later, after a considerable struggle, the barrier
against the admission of Jews to Parliament was removed
by st. 21 <fc 22 Vict c. 49, which authorised either
House of Parliament, in the case of a Jew otherwiae
entitled to sit and vote, to allow the words " upon the
true faith of a Cliristian " to be omitted from the oath.^
Tlie uniform current of legislation in the direction of
removing the religious restrictions on Eoman Catholics
suffered in one respect a temporary check. A Papal
brief in 1850, dividing England (in which the Boman
Catholics had previously been under the spiritual supei*-
vision of eight vicars apostolic) into one metropolitan and
twelve episcopal sees, led to the passing in the following
year of the Ecclesiastical Titles Act (14 & 15 Vict, c 60),
which prohibited, under a penalty of j£100, the procuring
or publishing of any brief conferring episcopal jurisdic-
tion or title in the kingdom, and the assumption of the
title of bishop or dean of any town or place in the king-
dom, by any person not being a bishop or dean of the
Established Church or of the Scottish Episcopal Church.
But the penalty, as years passed on, was not enforced, and
in 1871 was expressly repealed ; with a declaration, how-
ever, on the part of the legislature, that no ecclesiastical
title, or see, or deanery, can be vaHdly created in the
kingdom, otherwise than by the sovereign, and according
to the laws of the realm, and that the repeal of the
penalty was not to be taken as implying or sanctioning

8 See further st. 23 & 24 Vict. c. 68.

TIte People 63

the contrary. In the years 1867-1868 the oaths and
declarations to he taken hefore admission to civil offices
and rights were considerably simplified, and the n\iml)er
of offices and privileges for which anytliing of the kind
is required, was very much diminished ; and since 1867
the practice of passing an annual Indemnity Act, to relieve
persons who had omitted to take the necessary oaths on
assuming office, has been discontinued as unnecessary.

The Lord Chancellorship of Ireland has been expressly
thrown open to all persons, whatever their religious
opinions; and the same office in England, which was
kept specially closed against Eoman Catholics in 1829,
seems to be now equally open, though the mode in which the
law as to oaths and declarations has been tinkered by the
various acts on the subject has left this somewhat uncer-
tain. Lastly, in 1871, the Universities Tests Act opened
all offices and emoluments in the Universities of Oxford
and Cambridge and their colleges to persons of any
religious belief ; so that at present there appears to be
no public position in England, not directly ecclesiastical,
for the tenure of which adhesion to a particular religious
body or behef is required, except the throne itself, and the
office of head or governor of the colleges of Westminster,
Winchester, and Eton (see 14 Cha. 2, c. 4, s. 13).

Political A^tation. — With the improved represen-
tation of the people in Parliament consequent upon the
Eeform Act of 1832, and still more on that of 1867, the
same reasons have not existed as before forpolitical agitation
outside ParUament, by petitions and meetings. Yet the
practice has not been altogether abandoned, and its exercise
has more than once since 1832 influenced the course of
politics and legislation. As examples of this may be
mentioned the Anti-Com-Law League (a.d. 1838-1846),
the Eeform League previously to the Reform Act of IS^T ,

64 History of the English Institutions

find th() National IMucation League and National Edaca-
tioii rnion, with rcHpoot to the Education Act of 1870.
( )ti tin*. othcT hand, the ChartiHt organisation (a.d. 1835-
IH'IH), wiiic.h at one time assumed a threatening attitude,
fj'll to |)icc«'s without the attainment of any one of the fire
))ointH on which its meniLers had insisted. The multipli-
r;ition of ])ctitions attanied its greatest proportions
iM'-twc-cn iH.'Jf) and 1850, and has since somewhat
dimini.shed. In 1839 tlie House of Commons was
ol)li<^('d, ]>y th«! inc.rejiH(»(l pressure of business, to prohibit
iill d(d)at(i upon the ])reHentation of petitions; and since
that time, a n^cord of the petitions has been kept instead.

The Press. — Criticism of the Government and public
nnui, to;r(,th(.r with invective against their conduct and
nM5fisur(\s, has Imm'-u fr(»ely permitted since 1832, without
f<!ar of StaU) pr()st»(5ution under the Libel Laws. The
(liss(;minatiori of this criticism and of general news has
Ixjcn greatly facilitated by the reduction and ultimate
abolition of tluj newspai)er and paper duties. The adver-
tise rncrit dtity was lowered in 1833, and abandoned
alto;^<;ther in 1853. Li 183G concurrently with a remis-
sion of a i)ortion of the paper duty, the stamp on news-
])a]>(jrs was reduced to Id., after which the evasions of the
duty which had previously been frequent, and had led to
numerous prosecutions, whoUy ceased ; and in 1855, the
stamp and the duty were entirely abolished. The paper
duty met with the same fate in 1861.

Libel. — The latest alterations in the law of libel have
been effected by Lord Campbell's Libel Act (6 <fe 7 Vict
c. 96). Sect. 6 of that Act allows, on an indictment or in-
formation for a defamatory libel, a plea that it was true
and that its publication was for the public benefit ; and sect
7 alters the rule noticed above (p. 52), as to the convic-
tion of a publisher for the acts of his servants, by enact-

Tlie People 65

ing that a defendant may, in all cases, prove that the
puhlication was made without his authority, consent, or
knowledge, and did not arise from any want of due care
or caution on his part In 1846, a short Act was passed
prohibiting proceedings under stats. 39 Geo. 3, c. 79, and 57
Greo. 3, c. 19, except in the names of the law officers of
the crown. In 1869 the restrictive enactments on news-
papers and printers were repealed; but the latter are still
required to keep copies of papers ])rinted by them, and to
print their name and address on every such paper ; and
are liable to punishment for omission to do so.

Control over the Post. — The practice of opening
letters, which has been noticed as prevalent in the 18th
century, was expressly sanctioned by the Post Office Act
of 1837. In 1844 the exercise of the power, by the deten-
tion and opening of the letters of one individual, led to a
complaint in Parliament on the subject, and the appoint-
ment of committees of both Houses to consider it. These
committees recommended that there should be no change
in the law, and the Secretary of State consequently
retains his authority in the matter.

Aliens. — Fresh provisions for the registration of aliens
were made in 1836 by st. 6 & 7 WiU. 4, c. 11 ; but they
gradually fell into neglect, and in 1844 a considerable im-
picyement in the status of aliens resident in this country
was made by Mr Hutf s Act (7 & 8 Vict. c. 66). This
Act enabled children of British mothers to hold property
of all kinds in the kingdom, and gave to aliens, subjects of
a friendly state, full power to acquire and hold all kinds
of personal property, except British ships and leasehold
property, of which they might not take a lease for more
than 21 years. It also facilitated their naturalisation, by
confining the formalities of the process to the obtaining of
a certificate from the Home Secretary, and taking the oath

BMG. INST. -g^

66 History of tlu English Institutitms

i»f all<';;iaijce. Tliis naturalisation was to give tiiem all the
lights and ]irivile^es of British snbjects^ except tbe power of
}xMrorijiii^^ a ineinlter of either House of Parliament^ or of
th*^ I^rivy Council, or any other rights expressly excepted
in the certificate. Four years afterwards the disturbed
Kt'ite of Kunji>e, and tlie apprehension of tionbles in oom-
ii(K;tioii with the Chartist movement in this conntanr, led
to t}jf: pasKing of an Act authorising for one year the
Iloifie Secretary' in England, and the Lord-Lientenant in
In'Jaiid, tf> or<ler out of the kingdom any aliens who had
]x;(;n rcKident witliin it for less than three years, and the
d(;parture of whom he might have reason to think desir
Jilili^ 'I'he power thus conferred was however never
<'X<{rciK<Mly and it was not deemed necessary to renew the
Act.

On the other hand, in 1858 we refused to snirender to
Fniiic<j for punii*liment certain persons who had been con-
vAivwi'A in Oniini's plot to assassinate the French Emperoi^
w}iich was concocted in England, and who were shielded
by th(i f^ict that our law at that time treated conspiracy
to murder as only a misdemeanour and not a felony. The
strong indignation which this excited in France gave rise
to an (Mjually strong feeling in opposition in this country.
I>ord Palmerston attempted to pass a bill TnakiTig the
ofjiiuce a felony — a change in the law which was reason-
a}>le in itself, and was actually made three years later,
when our criminal law was consolidated. But he was
now defeated, and his ministry resigned. And when
Simon Bernard was indicted for complicity in the murder
of two persons who had been the victims of the shells
directed against the Emperor^s life, the feeling that the
proceeding was in reality a political one, and that the
right of foreigners to find an asylum in this country was
in danger of being compromised, led to the trial being

Tlie People 6y

regarded with extraordinary interest, and to the verdict of
acquittal heing received with tumultuous applause.

The present law as to aliens rests on an Act of 1870
(33 & 34 Vict c. 14), which enables them to acc^uire,
hold, and dispose of property in the kingdom of every
description, except British ships, as fully as natural-
bom subjects, but without a right to any office or fran-
chisa It further provides simple metliods for aliens to
obtain naturalisation (which "vvill now entitle them to all
political and other* rights and privileges, and subject
them to all the obligations of natural-bom subjects) ; and
also for natural-bom subjects to expatriate themselves (a
proceeding which in the eye of our law was previously
impossible), and afterwards obtain readmission into British
nationality. In the same year an improvement was made
in the law respecting the extradition or surrender to a
foreign state of criminals, who, after committing an
offence against its laws, should escape for refuge to this
country.

Reserve Forces. — The first germs of a military re-
serve force were formed by two Acts of 1843 and 1846,
which provided for the enrolment of a certain number of
out-pensioners of Chelsea Hospital, — men who had served
their time in the regular army, — as a local force to aid
the civil power in the preservation of the peace; with
liberty to volunteer in certain cases for home garrison
duty. But in 1859 a real reserve force was created, into
which men who had served in the Eoyal or East Indian
army might enlist. It might be called out when occar
sion required, to aid the civil power, and was also liable
to serve for the defence of the realm in case of war
or of apprehended invasion; and, when under training
or on duty, was to be subject to the Mutiny Act and
the Articles of War. In 1867 the Reserve ioice \j^

6S History of t/ie English Institutions

augmented and reorganised (30 & 31 Vict. c. 110); and a
militia reserve was formed, consisting of a certain number
of militiamen voluntarily enrolling themselves, who were
not thereby to cease to be militiamen, but merely became
liable on the outbreak of a war to be immediately drafted
into the army; and when this took place, but not before,
their places in the militia would be filled up. The supply
of men for the Militia has during the late and present
reigns been met by voluntary enlistment, and the provi-
sions for enrolment of mihtiamen by ballot have been
annually suspended, but they still remain the law of the
land, and would immediately come into force, should
ParUament in any year refrain from renewing the suspend-
ing Act. Moreover in this very Act power is reserved
for the Queen in council at any moment to order a ballot,
if a necessity for it should arise. In the winter of 1869
and spring of 1860 the apprehension of a French war
and invasion caused the formation of a volunteer force,
which speedily swelled to considerable dimensions. An
Act for the regulation of the force was passed in 1863
(26 & 27 Vict. c. 65) which placed them, as to the com-
missioning of their officers and for other purposes, under
the direction of the lord-lieutenants of counties, though
the Crown retained a direct control over them in certain
matters. They might be called out for active militaiy
service in case of actual or apprehended invasion of the
United Kingdom. In 1871, st. 34 & 35 Vict. c. 86, & 6,
provided for the resumption by the Crown of all the
jurisdiction and command over the miUtia, yeomanry,
and volunteers which had previously been vested in or
exercisable by the lord-lieutenants of counties. These
forces were thus put under the immediate command of
the War Office; and the commissions of the officers in
them were to be granted in the same way as those of

The People 69

officers in the anny. By the same Act (s. 8) volunteers,
when training with the militia or regular forces, were 8u]>-
jected to the Mutiny Act and the Articles of War, to whicjh
they had by the Act of 1863 been subjected only when
on actual military service.

Navy. — The power of manning the navy in time of
war by means of impressment lias not yet been formally
renounced. It was indeed distinctly recognised by st
5 & 6 WilL 4, c. 24, which limited the time of compul-
sory service in the navy to 5 years. But the practice is
contrary to the spirit of the times, and it can scarcely be
doubted that (to use the words of the report of the Com-
mission on the subject in 1859) "tlie system, as practised
in former wars, could not now be successfully enforced."
In 1866 the Naval Articles of War were re-enacted with
amendments by st. 29 & 30 Vict. c. 109; which also
r^nlated the courts-martial and punishments, and other
matters connected with the service. In the same year as
the army reserve was established (a.d. 1859), a naval
reserve was set on foot; to be composed of volunteer
merchant seamen, who on entering the force were to become
liable to twenty-eight days' training during the year, and
might be caUed upon to serve for three years, and after-
wards for an additional two, if the safety of the country
required it.

CHAPTER III.

LOCAL GOVERNMENT.

1. Local Institutions. — ^The history of our local
government presents less continuity than that of any other
part of our constitution. In its early form our local system
exactly displayed the features which Tacitus describes as
presented by the old Teutonic institutions. l^xvX) ^^^

JO History of the English Institutions

paramount central government, which was established
upon the amalgamation of the old independent districts
or communities into one kingdom, gradually absorbed
all authority into itself ; and for the most part our present
local institutions are the result of a reaction towards
decentralisation, and are emanations from the central
government rather than relics of past local self-govern-
ment.

Early Looal Divisions. — The Angles, Jutes, and
Saxons came over into Britain in several distinct tribes,
each led by a chieftain, who in war, as military com-
mander, bore the title of heretoga, and in time of
peace performed the duties of ealdorman or chief civil
magistrate. The territory occupied by each tribe was called
a scira or shire (and in Latin comitcdus or county).* It
was divided into districts called moegths, each of which
was occupied by settlers united by ties of kindred, who,
having fought and conquered together, took up their
abode together on the land they had won. Among the
old Teutonic tribes, while the executive or administration
of affairs was devolved upon the nobles, the whole mass
of the people was entrusted with judicial and legislative
powers. For the exercise of these powers every defined
community, whether large or small, had its gemot, or
assembly of its freemen; and its chief executive officer,
its gerefa or reeve, was periodically elected by this assembly
from among the nobler portion of the community. The
existence, therefore, of the moegth involved the meeting
of a mcegth-gemot and the appointment of a moegth-gerefcL
The shire, too, had its sdr gemot; and subseqently, when
the shires became only divisions of a larger state, its sdr-

^ Although the application of a Latin nomenclature to these old
Teutonic institutions is of a later date, it is convenient to notice it
when mention of them is first made.

Local Government 7 1

erefa — sMre-reeve or sheriff. For an amalgamation of a
reater or less number of shires into one kingdom soon
x>k place; and when this occurred, or when fresh divi-
Lons of a kingdom were made, on the model of the old
nits of territory, and like them called shires, a scir-gerefa
r vicecomes was appoined in each, as the deputy of the
ring and representative of the central authority, to act
ide by side with the eaXdonnan or comes, whose office
►erpetuated the memory of the old county independence,
t was from the times of this independence, and from the
act that the shire originally consisted of a distinct
ribe or community, as well as from the popular character
•f the assembly, that the scir-gemot derived its name of
blc-geniot or folkmoot, a name by which it was long
3iown. When the land became permanently settled and
K)rtioned out among individuals, and when members of
he original families of a district migrated, and strangers
ame and took their place, it was inevitable that the tie
tf kindred should give place to that of neighbourhood as
he bond of the community. Hence the maegth early dis-
ppeared as a recognised institution, and in its place there
xose, side by side, foiir small divisions of the community
nd territory, owing their origin to different causes: — (i.)
Che mark, township, or vill, a purely territorial division,
rhich seems to have been the immediate successor of the
QSBgth, and had its tun-gemot, and tun-gercfa — town-reeve
>r head-borough, (ii.) The lordship, subsequently called
;he manor, consisting of the land of a hlaford or lord, to
vfhom all the resident freemen were commended (see pp.
5, 6). (iii) ThQ parish, the ecclesiastical division, having
as its officers the incumbent, and two church-reeves, or, as
ihey were afterwards called, church-wardens — laymen who
were appointed annually either by the incumbent or the
parishioners, or one by the incumbent and tiie oWiet "Vs^

72 History of the English htstitutions

1-1 jM pariHhioiHTH. (iv.) The tithing, to the explanation of
which it will \w iiocoiwary to devote a few words.

Tithings.— Tho main functions of government in a
pritnitivit roiinnuiiity are not so much legislative as judi-
cial, iho (IcciHion of disputes l)etween individuals, and
alM)V() all the uiaiutenana^ of the peace and protection of
the porHoiiH and property of the people by the suppression
of oiitni^(v4 and crini(>». In order to enlist the active assist-
ance of all in furth<M-ance of this latter object, as well as to
Hoc.iin^ c.oniiM^nHation to tlie injured parties, our ancestors
a(in)it4Mi the princi])h) of making a community responsible
for tin* preservation of the peace within its district, and
for the ^ood condui^.t of all the individuals belonging to it
if any individual was accused of a crime, the community
wjw hound to j)r<\s(»nt him to justice, under penalty of
tlKUUHclveH ])ayin«^' the tine to wliich his crime had ren-
dered him liable. The community, in respect of this
joint Huretyrthip for tlio good behaviour of its members,
wan eaih^d ii/rit/i-hofyft. The meegth, as composed of the
kindred of the. criminal, was naturally, while it existed,
the ri^HpotiHible community. Afterwards the responsi-
bility (levolv(Ml on voluntary associations caRedf/ilds; and
eventnally the tithint/tt or decenniw-, consisting originally,
a.s th(i name implies, of ten men, were instituted for the
express ])ur|)oHe of the mutual liability. One of the ten
was choH(»n head, with the title of titJnng-^nan, tyenth-
heved, frithhonjc-heved, or harsh older. Besides being re-
<luircMl, jiH stated above, to attach himself to some lord,
evtiiy freeman, from the age of twelve years and upwards,
wjis bound to be enrolled in a tithing.

Townships. — It is easy to see that the four concurrent
divisions, mentioned above would naturally tend, in the
majority of cases, to coalesce and become conterminous.
The parish was generally identical with the lordship; for

Local Government , 73

the great majority of the country churches were built by
wealthy landowners for the convenience of themselves
and their dependants, and were endowed by them with
the tithes of the district under their control, in short,
of their lordship; which thus became the parish attached
to the church : while they in return received the right of
nominating the incumbent The convenience of having
the township of the same dimensions as the parish and
lordship would be obvious. And when the tithings in
process of time exchanged their original numerical limita-
tion for territorial bounds, they would for the most part
be accommodated to the existing divisions. Enrolment
in the tithing and commendation to the lord of the
township, would take place conjointly. In fact, in some
cases the obligation to pay the fine, in case a criminal
fled from justice, was transferred from the tithing to
the lord. The town-moot would become for many
purposes the court of the lord: it would be held under
his authority, and the town-reeve would preside as his
subordinate. When a lord acquired the jurisdiction over
a township, and, as he sometimes did, over a whole
hundred, the district was called his sithessocna. Again,
the office of town-reeve would be united to that of tithing-
man. In most cases where there was a resident lord, the
right of appointing to the office fell into his hands; but
in the townships which were directly under the king, as
their hlaford, the freemen retained their old privilege of
electing their own magistrate. The duties attached to
the office came to be the decision of petty disputes be-
tween the inhabitants of the township, and the awarding
of amends when one wronged another; the leading of the
townsmen to the fyrdy the collection of the taxes due
from them, and the exercise of a general supervision over
them. It was further the business of the town-t^ev^ \»

74 History of the English Institutions

attend, with four other inhabitants, for the purpose of repre-
senting the township, at the hundred-gemots and acir-
gemots.

Hundreds. — For besides forming part of the shire, the
townships wore early grouped together into hundreds, or,
as they were called in the north, tcapentaJces ; a further
division into ra27es, lathes, or trithiiigs (ridings) being
sometimes interposed between the hundreds and the shire.
Every freeman was required to be enrolled in a hundred
as well as in his tithing. AVhatever may have been
originally the case, the hundred soon lost aU connection
with the numl)er from which its name is derived. The
hundred-gemot Wiis held once every month; and in addi-
tion to the town-n^eve and four men from each township,
was attended by the thegns of the hundred. It was con-
vened and presided over by the hundred-geref a Or hundred-
man, and took cognizance of all matters arising within the
hundred.

Oourts-leet. — Once a year the courts of the lordship
and hundred were constituted into courts-leet for examin-
ing the frith-borgas, and ascertaining that all the freemen
were duly enrolled in them. The sheriff and bishop
attended in rotation the courts-leet of the different hun-
dreds; and when they were present, the court was called
the sheriffs' tourn. It was natural that all the important
business of the lordships and hundreds should be post-
poned from the ordinary meetings of their courts until
the holding of the courts-leet; and it seems that ulti-
mately much of the judicial business which at first came
before the sheriff and bishop in the county court was
transacted by them in the tourn in the different hundreds.

Shire-moots. — Appeals from the ordinary hundred-
gemots, and questions or causes which, as affecting more
tlian one hundred, could not be brought before those

L ocal Government 7 5

courts, were decided by the shire-gemot, or folk-moot — the
general assembly of the people of the shire, which uu't
twice a year, and was composcjd of the bishop, eahhjnujin
and shire-reeve, the hundred men, with twelve represen-
tatives from each hundred, the town-reeves, and four n^pre-
sentative men of the townshii)s, and the cler<(y and other
th^ns of the shire. Probably the other fre(imen of
the county were allowed to be present without the right
of voting.

Saldormen. — Originally the ealdorman and bishop sat
aide by side as presidents of the shire-moot, the former
taking the lead in civil, and the latt(;r in ecclesiiistical
matters. Whether or not the prolonged conflicts with
the Danes rendered necessary the separation of the civil
from the military headship of the shires, it is at any rate
certain that the civil position of the ealdormen gnidually
gave way to that of the sheriffs, and their duties became
almost entirely confined to leading the freemen of the
shire on military expeditions. And in this office they
were, towards the close of the Pre-Norman i)eriod, subordi-
nated to the five eorls appointed by the central authority,
among whom the supervision of the kingdom was divided.

Municipal Q-ovemment. — Such was the nature of
local government in the rural districts. A very similar
arrangement existed in the hurhs or towns; the burh-
gerefa, or in the case of a seaport town the port-gerefa,
taking the place of the shire-reeve, and the burh-gemot
that of the shire-moot. The principal towns, and particu-
larly London, early received peculiar trading privileges
and rights of self-government, and their affairs were
regulated by special laws and customs.

£incroa.chni6nts of the Central Authority. — After
the establishment of a central government, its natural ten-
dency was to encroach moiQ and more upon ^•a \QQ.?i\.

75 History of the English Institutions

institutions, making laws which would override the reso-
lutions of tlie scir-gemots, and deciding causes properiy
cognisable by them. This tendency to increase the ceor
tral at the expense of the local authority, and therefore
the power of the king and nobility at the expense of that
of the people, received a strong and constant impetoB
from the exposure of England to the continued attacks of
tlie Danes. • It was necessary, as it always must be in a
time of war, particulariy of war within the country, to
sacrifice private rights and privileges for the sake of the
community at large, and to invest the central authority
with a power which is incompatible either with full per-
sonal liberty or with a powerful local autonomy.

2. Effects of the Conquest. — ^The introduction of
feudalism, and the immense power and influence which
imder that system a noble could acquire over his sub-
tenants and the rest of the people dwelling on his estates,
gave rise to a danger that in England, just as on the
continent, the nobility might grow strong enough to defy
the king, and the mass of the people might be led astray
from their paramount duty to the sovereign, by the nearer
demands of allegiance to their local lords. It was, doubt-
less, a sense of this danger which induced the early
Norman kings to attempt to neutralise the power of the
barons, by preserving to a certain extent the old English
local institutions which were favourable to the indepen-
dence of the people at large. It is true that, in further-
ance of the ecclesiastical policy of Eome, William L
authorised the bishops to hold courts of their own, and
prohibited them from sitting in the shire-moots and
hundred-moots, thereby much diminishing the import-
ance of those assemblies. Moreover, for the sole benefit
of himself and those to whom he granted his forestal

Local Governmait yj

privileges, he introduced the galling forest laws, and
established the forest courts in the extensive districts
which were laid waste for the royal hunting grounds. In
those districts verderors and regarders were appointed,
who, with the stewards of the forest, held courts of
wood-^mote and aweinymote (at the latter of which, it is
true, the swains and freeholders within the forest were
the judges) for inquiring into any injury to the sward and
timber or deer of the forest, or any evasion of the laws
which prohibited the keeping of arms or dogs otlier than
mastifis as house-dogs within the district, and required
the expeditation or maiming of the fore-feet of all the
mastiff, to prevent their chasing the deer. In other
respects, however, the Conqueror and his sons retained
and confirmed the old laws as codified under Eadward the
Confessor; and under these laws the holding of the old
coiirts and assemblies of the people was continued. But so
far was it from being possible to rely on these for resisting
the growing influence of the barons, that they speedily fell
almost completely under that influence. The political
organisation of the township, and to a great extent that
of the hundred also, became practically subject to the
feadal lord of the land within the one and the other
respectively. The township was merged in the manor,
the tun-gemot being superseded by the halimote (hall-
moot or court baron), the court of the lord of the manor,
at which he or the steward, his deputy, presided. The
freemen or tenants of the manor assisted as judges in this
court It was held every three weeks; and, besides the
determination of disputes as to rights in the land of
the manor, questions of debt, and of injury to person or
property, where the amount involved was less than 40s.,
might be tried in it As the customary court of the
manor, it was also the tribunal for all matters connected

jS History of the English Institutions

%vitli ili(< lortrs villeins and the demesne land occupied by
thrni; but in these niattei's the freeholders, though present^
lijul no voice. ^loreover, in places where the franchise or
liberty of holding' such a court had been granted to the lord,
it once a year formed the court-leet, where the frith-boigas,
at this j)erio(l called frankpledges, were examined, oaths
of alle;^iance and fcidty were taken to the king and the
lord, in(|uirie8 were hold into nuisances, violations of
boundaries, rights of way and water, false measures, trea-
Hu re- trove, and thieves and idlers mthin the district^ and
various oth(;r IcH^d matters were transacted. In other cases
th(^ court-leet was annmUly held in the hundred-gemot^
or hundred-court, which was similar in its powers and
|)roc,e.dure to the- c-ourt-haron, but was held for the whole
hundred instead of a single manor. Its presiding officer,
tlie hundredor, was now a deputy of the lord of the
hundred, and fanned the office from him for the sake of
its (;molunients. But the hundred-courts gradually fell
into disuse, their business being transferred to the shire-
moot or, iis it came to be called, the county court, which
wjis thenceforth held once every lunar month, like the
old hundred-courts, instead of only twice a year. The
control over this court, too, fell in many cases into the
hands of the barons. For the bishop, who might have
formed an clement of independence, had been vidthdrawn
from it, and the office of sheriff, the chief county magistrate,
had in not a few shires become hereditary ; and assisted
hy his subordinate officers, the constables and bailiflfe, this
magistrate often wielded his powers in a manner equally
regardless of the king's authority and of the liberties and
rights of the common people.

Counties Palatine. — In a few cases the Crown itself
sanctioned and augmented the local political power of the
nobility by the creation of counties palatine, the lords of

Local Government 79

wliich had full royal rights within them. They might
pardon treasons, ^lurders, and felonies; they appointed uU
judges and justices of the peace; all writs and indictnirnts
ran in their names, and aU offences were said to he done
against their peace. The object of creating these counties
palatine seems originally to have been the protection of
the frontiers exposed to invasion. William I. founded
three — Durham, Chester, and Kent. Of these the first
and the last belonged to bishops, and therefore did not
add to the power of the barons; and the earklom of
Chester, to which the second was attached, was united to
the crown by Henry III. Eoyal rights over the Isle of
Ely, with full criminal and civil jurisdiction, were granted
by Henry L to the Bishop of Ely; and Pembrokeshire
and Hexhamshire (which is now united to Northumber-
land) were also made counties palatine.

Franchises. — It was further not imusual to grant to a
seignory or lordship, whether a manor or a hundred, special
Uberties or rights of trymg and punishing resident
offenders and persons committing offences within it, be-
yond what the common law allowed. The statute book
of Edw. 1 contains many enactments directed against
excesses and abuses in the exercise of these private juris-
dictions or franchises.

Control of the Crown. — But the barons, powerful
as they were, never succeeded in whoUy excluding the king
from interference in local matters. His position as their
feudal lord and as owner of crown lands in many of their
counties, gave him a footing for exercising his authority.
His court and council continued to be the supreme court
of appeal from the local tribunals; and as early as Hen.
Ts reign the latter were brought more directly under the
control of the king by the union of several counties under
one of the king's judges or justices, who made a circuit in

8o History of the English histitutions

Ills assigued district for the purpose of arrangiiig the
assessment and collection of the king's revenues. Henry
II. ^vent much further in the same direction. Besides
destroying many of the baronial castles, and deposing
sheriifs who had abused their office, he limited the power
of the barons by several new political institutions. One
of these, the establishment of regular circuits of the kin^s
judges throughout the countrj', not only for fiscal but also
for judicial purposes, formed a crisis in the history of our
IocaI judicature, resulting eventually in its virtual extin>
guishment, and the almost entire subjection of the whole
country to the one central judicial system, which will be
described in ch. viiL

Decline of the old Courts. — A decrease, in fact^
very rapidly took place in the importance of the old local
courts. The statute of Marlborough or Marlbridge (52
Hen. 3), in 1267, exempted the clergy and nobility from
attendance at the sheriff's toium and leet, and thus neces-
sarily deprived that tribunal of much of its importance.
The power of removing all causes from the courts baron
and hundred courts, and trying them before the justioes
on circuit (see ch. viiL), caused the jurisdiction of these
courts to fall gradually into disuse. Nor did the county
court itself maintain its original prestige. Before the
Conquest it had sustained a blow in the neglect of the
ealdorman to attend it, and the devolution of his duties
upon the sheriff The Conqueror had inflicted upon it
another by excluding the bishop. And when the king^s
justices came on their circuit into the county, they claimed,
as their peculiar province, the determination of all pleas
of the crown, matters in which the king^s revenues or
authority were interested. Magna Carta confirmed this
claim, and expressly prohibited sheriff constables, coroners,
and bailiff from holding pleas of the Crown. But, on the

Local Government 8 1

other hand, it contained a clause restraining the removal
of suits respecting land into the king's courts; and even
after the civil jurisdiction of the justices in eyre l)ocame
settled, the county court continued able not only to try
real actions or suits respecting land, but also to hold pleas
of debt or damages under the value of 40s. ; and might
even entertain all personal actions to any amount, by
virtue of a special writ called 9, jxistieies, which empowered
the sheriff, for the sake of despatch, to do the same justice
in his own county court as might otherwise be had at
Westminster. Moreover, the county court of course re-
mained for many purposes the general assembly for the
transaction of county business. All Acts of Parliament at
the end of every session were wont to be there published
by the sheriff ; all outlawries were there proclaimed; all
popular elections at which the freeholders had votes — as
of sheriffs, coroners, verderors, and knights of the shire —
were made in full county court The great changes brought
about by the establishment of the circuits must, like the
other alterations which took place during the period be-
tween the accession of Hen. 2 and that of Edw. 1, be looked
upon as having conferred a substantial benefit on the
people at large. It is true that in the local courts the
freeholders were theoretically themselves the judges; the
duty of the sheriff, or other presiding officer, being merely
to superintend the proceedings and carry the decisions of
the court into execution. But the same freeholders who
had composed the county court were summoned to attend
the courts of the king's justices; and in these courts, while
they werft-^^ed from the undue influence of powerful
loidB which had biassed their decisions in the local courts,
that share 4n judicial functions, which they had of old
possessed, was reserved to them by the mode in which
Henry IL appointed that causes should be brought before

BNG.XNST, ^

82 History of ttie English Institutions

and tried by his justices — a mode which will be described
in ch. viiL, and of which it is enough to say here that it
contained the germs of both our grand jury and oui
common jury.

The Charters. — The Great Charter contained pro-
visions for an inquiry by twelve sworn knights of every
county into the evil f orestal customs, and customs as to
the jurisdiction of sheriffs and river wardens, which might
have sprung up there; and for disafforesting recently made
forests, and so reducing the limits of the districts subject
to the despotic forest laws : and a prohibition of any in-
crease in the customary liability of a district or its inhabi-
tants to make and repair bridges under the old trinoda
necessitas. The Forest Charter further limited the forests
and the jurisdiction of the forest courts, and regulated the
mode of procedure in the latter.

Coroners. — In the course of carrying out the process
of judicial centralisation an important political right was
conferred on the people. In order to insure that pleas
of the Crown were brought before the king's justices,
it was deemed expedient in the reign of Hen. 2, or of
his successor Eic. 1, to constitute a new county office^
that of coroner^ who was so called from his having to deal
with those pleas. The lord chief justice of the King^s
Bench was, by virtue of his office, chief coroner through-
out the kingdom; but in each shire county coroners^
usually four in number, consisting of three knights of the
shire and a clerk, were to be elected by all the freeholders
of the county in the county court. This was the earliest
revival of the practice of real popular election which eveiy
change up to this time had tended more and more to
banish from the constitution. In 1275 the habit of elect-
ing to the office persons of insufficient qualifications ren-
dered it necessary to enact that they should be choeen

Local Government 83

from among the most loyal and wise knights of tlici shire
(3 Edw. 1, c. 10) ; and in the following year tlie duties
of the office were regulated by statute. Tlie coroners
were to hold inquiries when any one was slain or W(junded,
or drowned or died suddenly, or when houses were
broken into; and the murderers or pers(jns found guilty
of violence in the matter inquired into were to he
delivered to the sheriff and committed to gaol or bailed
till the coming of the judges. They were also to incjuire
into cases of treasure-trove or of wreck, both of these
species of property being royal perquisites.

Sherif&i. — Nor was the creation of a royal officer
deemed sufficient to limit the power which the barons
exercised through the office of sheriff. Henry II. attacked
the hold they had obtained on that office by displacing
the sherifGs in many counties, and appointing lawyers and
soldiers instead of local lords to fill it. The assize of
1194 prohibited the sheriffs from acting as justices in
their own counties, and in the latter part of Edw. I's reign
an Act was passed granting to the people the election of the
sheriff where the shrievalty was not hereditary, and thus
assimilating the appointment of sheriffs to that of coroners.

TTigh Constables. — In the same reign a new local
office was established, the holders of which were to be
directly responsible to the king's justices. Two high
constables were to be chosen in every hundred and fran-
chise to see that the inhabitants were duly armed, and that
strangers, for whom no security was given, were not har-
boured in upland districts, and to report defaulters to
the justices (13 Edw. 1, 8tat Wynton, c. 6).

Borough Charters. — The existence, before the Con-
quest, of hurhs or boroughs, with a peculiar organisation
and officers of their own, has been already noticed. These
boroughs (including cities) were not handed over by the

84 History of tJu English Institutions

Conqueror to his barons with the counties in which they
were situate, but were retained by him as part of his own
demesne, or specially granted to some lay or spiritual
noble. The lord, whether king or noble, required from tiie
burgesses an annual rent besides various dues and customs,
and, to insure punctual payment to himself, generally
farmed out these revenues, like those of the hundredB,
for the highest price he could get The man who paid
this price became, under the title of bailiff^ chief magistrate
of the borough in lieu of the old borough-reeve or port-
reeve, and used the powers delegated to him by the lord
for the oppression and extortion of the inhabitants. The
object of the lord, however, being to derive as much profit
as possible from the borough, he was easily induced, on
payment of an adequate sum, to grant a charter of liber-
ties and privileges to the burgesses either in perpetuity or
for a limited period, thus restoring their self-government
in whole or in part. The plan was also generally adopted
of farming out the boroughs to the burgesses themselves,
as being more conducive to their own contentment and
prosperity, and equally profitable to the lord. In such
cases they were said to hold their town in fee farm. One
of the earliest of such arrangements is extant in the
charter granted by Henry I. to the citizens of London By
that charter he granted to them the county of Middlesex
to farm in perpetuity for three hundred pounds, with the
privilege of appointing their own sheriff and justiciary,
and exemption from the jurisdiction of any other, and
from liability to be impleaded without the walls of the city.
They were also to be relieved from the payment of scfA
and lot^ Danegeldy murder-money, and various custom-
duties, and from the obligation to accept trial by battel.
They were also to have their weekly hiufting-courfs, their
wardemotesy and their folk-motes, from- which there was

Local Government 85

to be no removal of suits into the king's courts. Other
borough charters were granted in Hen. Ts reign ; but they
were almost all superseded by those of the time of Hen. 2 and
bis sons, which conferred increased privileges, extending
eventually to the right of the burgesses to choose annually
their own mayor or chief officer. This right was accorded
to London by a charter of John in 1215. In some cases,
as a special favour, the king granted to a corporate town
the additional privilege of being a county of itself, governed
by its own sheriffe and other magistrates, and wholly
independent of the surrounding rural county. The Great
Charter (c. 13) confirmed to the city of London, and all
other cities, boroughs, towns, and harbours, the enjoy-
ment of their liberties and free customs.

Special Jurisdictions. — It would be beyond the scope
of the present work to notice certain special jurisdictions
which prevailed in particular places or districts, such as the
Cinque Ports, with the two ancient towns (Winchelsea
and Bye), and their members (i, 6., districts attached to
them), possessing their courts and lord- warden ; and the
Stannaries in Cornwall, with not only coiuiis but also a
local Parliament

3. Sheriffs. — In 1315 the right of choosing their own
sheriflGs was withdrawn from the county freeholders, and
the appointment of sheriflfe and hundreders was vested in
the chancellor, treasurer, barons of the Exchequer, and
judges. The persons appointed were to have sufficient
land in the shire to answer to the king and the people,
and were not to lease their office to another ; the sheriffs
were not to be the stewards or bailiffs of a- great lord, and
the hundreds were to be farmed out at such a reasonable
rent as would not render necessary any extortion on the
people (9 Edw. 2, st 2). In the foUowing m^ ^»\\^

86 History of t/ie English Ifistitutions

ti'inmi of tin? Hhricivalty was limited to one year, and the
morrow of All Souls* ])ay and the Exchequer were fixed
as Ww timo and ])laco of the annual election. The mode
of ai)|)ointin^' HhcTittH thus prescrihed has continned snb-
Hiaiitially the sanio down to the present day.

Parish Oonstables. — Ahout the reign of Edw. 3
mniili(;ationH of the n^cently-created military oi^ganisatuHi
of tbo rounticH and hundreds (see p. 83) were extended
into tlm di(r«*n»nt townships by the appointment in each
(►f fi iff'ifii or parhh ctmstahh, to act under and assist the
hij^h (M)nHtabl« of the hundred. He was to be chosen at
the cotirt-h'ct of the township; and in general the office
of p<'tty couHtablo, and the old one of head-borough or
tithinj^-nian, were filled by the same person.

Justices of the Peace. — Tlie office of justice of the
pcaffi, which wji« destined to occupy the most prominent
plac.o in our local administration, was established on a
(Icflnitc and pcTiiianent basis in the reign of Edw. 3.
Kvc^n ])ofor() that time there had been occasionally
appolnt(Ml local conservators of the peace, independently
of tlioHO who, like the sheriffe, coroners, and others, were
such ])y virtue of their office. And the agitated condition
of the country, which followed up)n the deposition of
Edward IT., gave rise to a distinct enactment by the king
and Parliament that in every county good and lawful men
should ])e assigned or appointed to keep the peace (1
Eflw. 3, st. 2, c. 1(5). These conservators of the peace
w(;rc a few years later invested with judicial powers, and
th(}ir poHition and duties were gradually defined during
the reigns of Edw. 3 and his successors. In every county
there were to be assigned by the king's commission, for
the keeping of the peace, one lord and three or four of the
most worthy of the county, with some learned in the law.
Their numbers quickly became unduly increased, but

Local Government 87

were limited, in Eic. 2*8 reign, to eight in each county, who
were required to be residents in the county, and to possess
lands of the annual value of £20. They were authorised
to imprison and punish rioters and offenders, to arrest
and imprison vagrants, and take security for good be-
haviour from persons of bad character; to hear and deter-
mine felonies and trespasses at the king's suit; and to
enforce the laws as to labourers (see p. 21). They were
assisted .in their duties by a subordinate officer, called the
derk of the peace of the county. They were to hold
their sessions four times a year, and of tener when needed,
with 4:S. a day as wages, and 2s. to the clerk of the peace.
The sessions were to be held before two justices at least;
and it became the practice to insert in the commissions
what was called, from its opening word, the quorum
clause, specifying certain of the justices by name, and
requiring that at least one of these, who were called jus-
tices of the quorum, should be present. The power given
to the justices in Eic. 2's reign of summarily arresting
rioters and detaining them in prison without bail until the
next assizes, was petitioned against by the commons.
And doubtiess their authority was in many cases no less
abused than had been the special jurisdictions granted to
the lords of certain manors and districts. In fact, in the
following reign we find an Act which complained that
divers constables of castles were assigned to be justices of
peace by the king's commissions, and by colour of the said
commissions took people to whom they bore ill-will and
imprisoned them within the said castles till they had
made fine and ransom with the said constables for their
deliverance; and the Act declared that none should be
imprisoned by any justice of the peace, but only in the
common gaol; saving, however, to lords and others wrho
had gaols, their franchise in this respect.

88 History of the English Institutions

Gustos Botuloruxn. — Contemporaneoiuly wiHi tiie
oificti of jiifttice of the peace was institated that of custoB
rotulorum, or keeper of the rolls and recordB of the oonntTy
who waA always a justice of the qnomm as weD, and
was doeniwl the highest civil officer of the coirntT. Pie-
vioiisly to 1545 he was appointed by the lord-chaaeeDor,
and luul the right to appoint the clerk of the peace ; and
\HtTW)\m wholly unlit in point of learning and integrity had
lield those ottices without liability to be remoTed; a stake
of things which caused miscarriages in the administiatioii of
criiriinal Justice, and frauds in the transfer of landed property
in the c^junty. To remedy these evils, st 37 Hen. 8, c 1,
eniu;tc3d that the custos rotulorum should, except in oonn-
ti(;s f palatine, Ik; appointed by the king's sign TiMLTnial^ and
hold otfifM) during the king's pleasure, and that he ahonld
apixiint th(i chirk of the peace to continue during his own
t<;nure of oHice or during good behaviour; and empowered
(fither olIic(3r to perform his functions by a competent
dcjputy.

Power of the Central Authority. — ^The effect of
the new crmnty institutions which have been noticed, as
dating ivom Edw. 3's reign, was rather to bring under the
king's amtn^l, tlian to diminish, the paramount influence
of the nobility and great landowners in local afEedis. The
indeijondent franchises of the lords were, where they
existed, always reserved to them by the statutes which gave
authority to the justices of the peace. And Edward
IIL even established a new local sovereignty by wialriTig
Lanca«liire a county palatine under the Duke of Lanc&ster;
but from the time that Henry IV. ascended the throne,
the duchy was always held with the crown, and vras per-
manently united to it on the accession of Henry "VTL

Municipcd Ghovemment.— The encroachment of hi-
dividuals upon popular rights, which had already taken

Local Government 89

place in the local county courts, gradually extended itself
to the municipal institutions of the horoughs. At firHt,
after the grant of their charters, the whole hody of hur-
gesses elected their mayor or other chief officer, and assem-
bled in person for the transaction of buBiuess. But as
commerce and the size of the towns increased, and the
number of the burgesses became augmented by the admis-
sion of persons connected with the town by birth, mar-
riage, apprenticeship, or trade, and others to whom the
right of being a burgess was given or sold, the more
convenient practice of representation was introduced
for municipal, as for parliamentary government. The
most wealthy and influential inhabitants being chosen as
the governing body or town council, gradually usurped
the privileges of the inferior townsmen, assumed all muni-
cipal authority, and substituted self-election for the suf-
frages of burgesses and freemen. In spite of many
struggles, the change had, at the close of the 15th century,
been successfully accomplished in a large proportion of the
corporations of England. In those in which it did not
take place spontaneously, it was effected by the grant from
the Crown of a charter either conferring or reviving the
privilege of returning members to Parliament, and at the
same time vesting all powers of municipal government in
the mayor and town council, — nominated in the first
instance by the Crown itself, and afterwards self-elected.
Charters of this kind were granted by the Tudor sove-
reigns, and by many of them the governing body thus
appointed was entrusted with the exclusive right of re-
turning members to Parliament. And in order to bring
municipalities imder the direct influence of the Crown, a
high steward was often appointed. The office was usually
filled by a nobleman who became the patron of the borough,
and dictated the members to be returned by it to Pacliomfiut*

90 History of the English Institutions

4. Looal Bates. — About the time of the Eeformar
tion, a new and important feature was introduced into local
administration. This was the imposition of an organised
local taxation in the shape of rates. The county rate
api^ears in the mode prescribed in 1530 for the repair of
bridges. These had previously to that time been repairable
by the hundreds or parishes; but the repairs were now
thro^vn upon the county at large, and the justices were
empowered to convene the constables or two of the in-
habitants of every town and parish in the shire, and with
their assent to tax all the inhabitants for the repair of
the bridges. Two collectors of the tax were to be appointed
in each hundred, and two surveyors of bridges in each
shire. A similar provision was at the same time made
for the repair of bridges in cities and towns corporate
(22 Hen. 8, c. 5). In the following year the imposition
of another local rate was authorised. St. 23 Hen. 8, c. 5,
empowered the lord-chancellor, lord-treasurer, and the
two chief-justices to issue commissions in the king's name
to commissioners of sewers in certain districts which,
owing to the encroachments of the sea or the want of
2)roper drainage of the land and outlets for the river water,
were suffering from inundations. The commissioners
were entrusted with ample powers for remedying the evil,
and were authorised to levy rates on the owners of land
in the district for which they were appointed, in order to
meet the expenses incurred by them in the discharge of
their duty.

Justices of the Peace. — Besides the new powers
given to the justices in reference to the county rates, a
further important step was taken in the reign of Hen.
8 towards consolidating their authority. In 1542 an Act
was passed which, after reciting that certain laws as to
vagabonds, gamesters, victuallers, innkeepers, and others,

Local Government 91

had up to that time been very negligently enforced,
required the justices of counties to divide themselves into
districts with at least two justices to each district The
justices of each district or division were to hold a sessions
every quarter in addition to the quarter sessions, and were
authorised at such divisional sessions to try offences against
the above-mentioned laws, and also to correct the lists of
jurymen (33 Hen. 8, c. 10). Such was the origin of
jpe^y sessions, the jurisdiction of which was thencefor-
ward continually increased by new statutes giving addi-
tional powers to divisional justices either at their ordinary
sessions, or at special sessions to be held by them for the
purpose specified in the particular Act which gave the
authority.

Highways. — The measure for the repair of bridges was
followed not long afterwards by another for the repair of
highways. But the liability to this latter duty was con-
tinued in the parishes, and its due performance was pro-
vided for, not by taxation, but by obligatory labour. By
St. 2 & 3 Ph. & Mar. c. 8, two inhabitants were annually to
be appointed surveyors of highways in every parish at a
meeting convened by the constables and church-wardens;
who were also to appoint four days between Easter and Mid-
summer, when the parishioners, accordiQg to their meems,
were either to furnish horses and carts, with labourers
and implements, or were themselves to work on the road
with their own tools. This requirement was called statute
duty, and its neglect was to be punished by the stewards
of the courts-leet by fines, which were enforceable by the
bailiff and high constable of the hundred.

Poor Law. — But the importance of the measures as
to bridges and highways is insignificant compared with
that of another element of our local organisation which
dates from the same period Upon the dissolutioii at \X!kft

92 History of tfie English Institutions

monasteries, which had up to that time alleviated distress
in an irregular manner by the distribution of abns, it
was deemed necessary to establish in their place a ciyil
machinery for the relief of the poor. St. 22 Hen. 8, &
12, accordingly required all beggars and vagrants — both
the aged and impotent, and also the able-bodied— to
repair to the place of their birth: and St 27 Hen.
8, c. 25, directed the authorities in all cities, counties,
towns, and parishes to maintain by voluntary alms the
aged and impotent poor coming there as required by
the former Act, and to set the able-bodied to work;
and imposed a punishment on beggars, and persons
refusing to work when able to do so. And the clergy
were to exhort their people to give alms for the pur-
poses of the Act This Act was followed in the same
and the succeeding reigns by other ineffectual measures
for the relief of the deserving poor, and the suppression
of rogues and vagabonds, as they were called; until at
length in 1601 st 43 Eliz. c. 2, was passed, which is the
foundation of our modem poor law. It provided for
the appointment in every parish of overseers of the poor,
consisting of the churchwardens, and from two to four
householders, nominated annually by justices of the neigh-
bourhood. These overseers were required to levy a rate
upon the landed property in the parish, and apply the
money so raised (1) in setting to work indigent children,
and able-bodied persons who were without employment and
means of subsistence; and (2) in relieving the impotent,
blind, aged, and other poor who were unable to work,
and had no parents, grand-parents or children able to sup-
port them. If any parish was unable to furnish the
money for these purposes, the justices might raise it out
of any other parish within the hundred. The Act gave
an appeal against the rates to the justices in quarter sea-

Local Governmmt 93

tionA, who might also, if the resources of the hundred
bailed, impose a rate to supply the deficiency out of another
part of the county, and might likewise, out of the nitcs im-
posed hy them, erect houses of com^ction for rogues and
vagabonds. The overseers were further empowortHl to
put out pauper children as apprentices, and, with the eon-
sent of the lord of the manor, to build houses for the
reception of the poor on waste land in the i)arish. The
powers which the Act gave to rural justices wen^ to l)e
exercised in boroughs and cities by the mayors, ])ailiii's,
and other head officers.

During the half century which followed tli(^ pjissin*,'
of the Act of 43 Eliz., its provisions wer(» in some
places very imperfectly carried out, and, wliere this was
the case, the poor were reduced either to perisli of want,
or else to migrate to another parish where the law for
their relief was better observed. This migration, of
course, imposed a heavy and unfair burden upon the
well-regulated parishes, and its evils apjxjar to have been
especially felt in London and Westminster. Accord-
ingly in 1662, st 14 Cha. 2, c. 12 provided that witliin
forty days after the coming of any person to sotthj in a
parish in a house under the yearly rent of £10, ho mi<ijlit,
by an order of a justice on complaint of the church-
wardens or overseers of the parish, be removed back to
the parish in which he was born or was last settled for
at least 40 days, subject to an appeal from all such orders
to thejustices in quarter sessions. Thus was imported into
the poor law the doctrine of 8ettlemQ7it, }i\nm whicli, as
upon other details of the law, a vast amount of legisla-
tion and litigation has since taken place. It was also
enacted that, in the city and metropolitan boroughs, tlicn-e
should be corporations and workhouses for the relief t)f
the poor.

94 History of the English Institutions

Deoline of old Institutions. — ^The Act of Cha. 2
just cited furnishes a striking illustration of the disufie
into wliicli tlie old local courts and organisations had then
fallen, and of the manner in which they were superseded.
Under the early laws against rogues and vagahonds im-
portant duties had heen devolved upon the parish con-
stable; and this Act, after complaining that the want of
due execution of these laws had been sometimes owing to
want of officers, by reason of the lords of manors not keep-
ing courts-leet every year for appointing them, proceeded to
authorise two justices to fill up temporarily a vacancy in
the office of constable, head-borough, or tithing-man in
any parish until the lord should hold a court, or until the
next quarter sessions ; and the person whom the justices
in quarter sessions should confirm in the office or appoint
to it, was to remain in it until the holding of a court-leet.
Similarly the high constables, originally appointed at the
courts-leet of the himdred or franchise over which they
were to preside, were, when these ceased to be regularly
held, appointed by the justices at quarter sessions.

The same tendencies towards an extension of the in-
fluence of the crown or central authority, and an augmen-
tation of the power of the wealthier or more influential
few at the expense of the mass of the community, which
were previously in progress, continued after the Re-
formation. The counties palatine, with the exception
of the two in the hands of the Crown, those of Chester
and Lancaster, and the episcopal palatinate of Durham,
were abolished during the 16th century; and in the reign
of Edw. 6 or of Mary the power of the Crown in the
counties was strengthened by the establishment in each
county of a new office — that of lord-lieutenant, who was
appointed directly by the Crown, and was entrusted 'with
the supreme military command in the county. As among

Local Govemmetit 95

the early English trihes, it was frequently the ca.sf that
the same indiTidnal was ealdorman and heretrt^ra, so now
the post of loid-lieutenant and the civil office (jf ciist<js
rotulorom were often held hy the same nohlenian. The
attempt made hy Charles L and his advisiTs to revive
the old forest laws and jurisdiction of the Crown over
rural districts, which had long ceased to lie subject to
them, met with signal failure; hut the policy of suhject-
ing horoughs to the control of the Crown tlirouj^h the
medium of high stewards, which has been noticed as
adopted hy the Tudor sovereigns, was continued until the
Revolution; the last two Stuarts invading the lilx^rties of
the few corporations which then still retained a popular
constitution. Moreover, the administration of parochial
affiurs in many places passed out of the hands of the
whole body of rated parishioners into those of a few
inhabitants self-elected and irresponsible, who were termed
a 8dect vestry^ and as such imposed and administered
the parochial rates, and exercised all parochial authority.
On the other hand, an important step in the popular
direction was effected by the abolition, which took place
immediately after the Restoration (see p. 27), not only of
the feudal tenures, but also of the court of wards and
Hveries, in which matters connected with those tenures
had been decided, and which had afforded facilities for
undue interference and oppression on the part of the king
and the other feudal lords.

6. County Rates. — ^Towards the close of Will. 3's reign
the justices of each county were empowered to levy a rate for
the erection and repair of gaols within the county (11 Will.
3, c 19), and early in the following reign the absolute
power of fixing the rate for the repair of bridges was given
to the justices in quarter sessions (1 Ann. c. 12).

96 History of the English Institutions

Up to the year 1739 the prison rate and bridge rate,
the county poor mte to make up deficiencies in destitute
districts, and some other county rates which the justices
in quarter sessions had been by various acts empoweied
to levy for building houses of correction for rogues and
vagabonds, relieving poor prisoners and setting them to
work, and kindred purposes, had all been levied separately
— ^a system productive of great expense and inconvenienoe,
and in many cases, absolutely impossible to work. To
remedy this, the justices were empowered by st. 12 Gea
2, c. 29, to make one general county rate sufficient to
answer aU purposes, which was to be defrayed out of the
poor rate, and paid by the churchwardens and oveiseen
of each parish to the high constable of the hundred, and
by him handed over to a county treasurer appointed at
the quarter sessions. Where there was no poor rate, the
Act required the parish constable to collect the county
rate and pay it to the high constable; but by a later Act
(55 Geo. 3, c. 51) this duty was to be performed by ove^
seers specially appointed by justices.

Lunatic Asylums. — ^An Act of 1808 added another
to the possible .items of expenditure, towards which the
county rate might be applied, by empowering the justices
of the county at quarter sessions to erect, or join with
another county in erecting, a lunatic asylum, and to
appoint visiting justices for superintending its manage-
ment. The expense of the asylum was to be defrayed
out of the county rate, and the justices might borrow
money upon the security of the rate to meet the coste
of its erection. This Act was followed by others on
the same subject, and at length by st 9 Geo. 4, c. 40,
which repealed all the previous enactments; but even
this last statute did not go the length of making the
erection of a lunatic asylum obligatory in every county.

Load Government 97

Highways. — The liability to the repair of highways
was still retained in the separate parishes, but by an Act
of 1773 (13 Geo. 3, c 78) the justices, at special petty
sessions held annually for the purpose, were required to
i^point for each parish a surveyor of highways for the
ensuing twelve months out of a list of at least ten persons
drawn up by the constable, churchwardens, and rate-
payers of the parish, and submitted to the special sessions
for the purpose. Power was given to the justices to con-
trol the conduct of the surveyor, and punish him for
n^ect; and also to enforce the performance of the statute
duty, and the proper repair of the highways, and to try
and punish offences committed upon them. Besides these
powers in reference to parish highways, an Act of the same
year, consolidating the laws as to turnpike roads, gave
to the justices in quarter sessions and petty sessions —
and as to some matters, to a single justice — jurisdiction
over various points connected with the management of
that class of highways.

Poor Law* — In the period between the Eevolution

and the Reform Act of 1832, considerable alterations and

amplifications took place in the machinery of the poor

law. The institution of workhouses and unions dates

from 1723, when the churchwardens and overseers of

parishes were empowered, with the consent of the vestry,

to purchase or hire houses, or contract with any person

for the lodging and employment of the poor. Three small

parishes might unite in establishing a single poorhouse ;

and persons who declined to submit to the lodging provided

for them were not to be entitled to any relief (9 Geo. 1,

c 7). Sixty years later, Mr Davies Gilbert's Act (22 Geo.

3, c. 83) introduced the office of guardians in parishes

where the adoption of the Act was agreed upon by two-

thiids in niunber and value of the owners or occupiers

BNG. INST. Q

9^ History of the English histituiians

of hin(I(Ml ])r()])erty in the parish assessed to the poor-
rat<^ \a) Die amount of at least X5 per annnm, or if there
wcTo not ten porHons in the parish assessed to that
ainrMint, tlic.n ])y the same proportion of all the assessed
ownefH or occupiers. Two or more parishes deciding to
iMlo])t the Act were authorised to nnite for the purpose
of cfirryitig out its arrangements. Where the Act was
mIo])ie(l, a ])ai(l guardian was appointed for each parish
hy the local justices, from three persons recommended
to them ])y a meeting of the qualified ratepayers. AH
ttie former ]K)wers and duties of the churchwardens and
overwNirH with respect to the relief of the poor were then
tniUHfernxl to the guardians, except that of niftlHiig and
(;ol hasting tlie rate. A governor for each poorhonse was
to 1k) annually appointed by the justices from persons
recommended to them by the parish ; and also a visitor
of each union i)oorhouse, in the case of parishes nnited
under the Act The guardians of such united parishes
were to meet monthly, and settle the accounts of the
union, and adjust the amount of the expenses to be
dcjfrayed by eiich parish, which was to be proportionate
to the average sum paid by each for the relief of
the poor during the three years preceding the first
monthly meeting. The guardians were empowered to
borrow money for the erection of a poorhonse on the
security of the poor-rates. They were to send to the poor-
house only the aged, sick and infirm, and children, pro-
viding them with suitable clothing; were to prosecute
idle and disorderly persons, able to work, who neglected
to maintain themselves and their families ; and were to
make provision for the labour of persons willing but
unable to get work, applying the wages of such labour
towards their maintenance, and making up the deficiency,
if any. If a guardian failed in his duty, an order might

Local Government 99

be obtained from a justice enforcing the performance of
it^ under pain of a fine. The unions fonued under this
Act were called Gilbert Unions ; but where it was not
adopted, the relief of the poor continued to be regulated
by st. 9 Geo. 1, c. 7. Various small amendments in the law
were, however, made from time to time. Among other
things, justices were empowered to visit parish w(jrkhouse«,
and if they were in an improper condition, the matter
might be remedied by an order of quarter sessions.
Moreover, the entire exclusion of out-door relief was
modified for places not subject to the Gilbert Act ; the
overseers being authorised, with the consent of the vestry
or of a justice of the district — and even compelled, upon
an order of a justice — to give relief to persons in their
homes under peculiar circumstances of temporary illness
or distress, or otherwisa And in 1819, an important Act
was passed, which empowered the vestry of any parish
to establish a select vestry of not more than twenty nor less
than five substantial householders, for the concerns of the
poor of the parish ; upon the establishment of which the
overseers were to conform to its directions, and, except in
urgent cases, give no relief without its order.

Local Oourts. — ^Towards the end of Geo. 4's reign,
the quarter sessions of a county were empowered to alter
the existing petty sessional divisions and constitute new
divisions. This measure was rendered necessary by the
great multipUcation of the duties assigned to the justices.
For it was not in matters of county taxation and adminis-
tration alone that the powers of justices of the peace
were during this period largely increased. Various Acts
were from time to time passed, authorising them in petty
sessions to try divers small ofiences in a summary way ;
80 that by degrees the petty sessions was constituted into
a court of criminal jurisdiction, from which, in most

lOo History of the English Institutions

cases, an appeal to the quarter sessions was permitted.
At the same time, the kind of tribunal resorted to for the
decision of small civil matters was undergoing a change.
As late as Edw. 6*8 reign these matters had usually been
brought before the county courts ; and, in order to pre-
vent the delay of justice, an Act of 1548 (2 & 3 Edw.
6, c. 25) directed that no county court should be
adjourned for longer than one lunar month : but since
that time recourse to them had been gradually becoming
less frequent. One of the chief reasons for this was the
great dilatoriness and expense of proceedings taken in
them; which were liable to be further protracted and
rendered more costly by being removed into the superior
courts on a writ of 'pone or recordari, or of false judgment
The objections felt to the procedure of the county courts
led to the establishment from time to time, in variona
towns, parishes, and places, by special local Acts, of
courts of requests or of conscience, for the more easy and
speedy recovery of small debts. The earliest of these courts
was that for the city of London, which was instituted in
1517 by the civic authorities, and the jurisdiction of which
was confirmed by Acts of Ja. 1 and Geo. 2. It was to be
held twice a-week, by two aldermen and four commoneis
appointed monthly by the Lord Mayor and aldermen, and
its powers of adjudication were afterwards extended to
debts not exceeding .£5. The small debts court, estab-
lished in Middlesex by st 23 Geo. 2, c. 33, took the form
of a special county court to be held by the county clerk,
with freeholders as a jury, at least once a month, in every
hundred of the county, for the trial in a summary way of
causes not exceeding 40s. in value, from which there was
to be no appeal Li order to ensure recourse being had
to the various small debts courts when estabUshed, it was
the practice to insert in the Acts under which they were

Local Govemviait i o i

erected a provision, that a plaintiff having a cause of action
for a small matter, for which he might have obtain(H.l
satisfaction before the newly-constituted tribunal, should
forfeit his right to costs if he sued in the sui>erior courts
instead.

Municipal Government. — After the Kevolution, the
rights of municipal corporations were no longer sulvject to
be overridden by stretches of the royal prerogative, but
they had come to be regarded as close governing bodies,
and had for the most part lost all traces of their original
popular character. The charters of George III. favoured
the municipal rights of burgesses as little as those of
Elizabeth and James L ; and, as a matter of fact, whether
by the original charter or by the progress of events, muni-
cipal government had become almost universally re-
stricted, either to the town council alone, or to that bo(^ly
jointly with the freemen, who were in a great part its o^\^l
nominees. The members of the council were in many cases
self-elected; they usually held office for life, and took advan-
tage of their position to advance and consolidate their own
interests and those of their families. They acted without
any sense of responsibility, and their proceedings were gene-
rally secret ; secrecy being even sometimes enjoined by an
oath. To this exclusive municipal power was added, in
some boroughs, the enjoyment of exclusive trading privi-
l^es, which had an injurious effect upon commerce. The
fact that the corporations were the strongholds of parlia-
mentary interest and intrigue secured them from the
reforms to which they would probably otherwise have
been subjected. As it was, in many places, owing to
their mismanagement, important municipal powers were
entrusted, under local Acts, to independent trustees or
commissioners, in whom the inhabitants had confidence.

Vestries. — It was natural that in pmahaa, ^fj\i«x^

1 02 History of the English Institutions

select vestries became established (see p. 95), variotis
irregiilarities should creep into the administration of afEEdrs.
One of these, that of transacting business without notice, was
remedied by Mr Sturges Bourne's Act in 1818 (58 Geo.
3, c. 69). The same Act effected an important altera-
tion in the mode of voting in the case of those vestries
which had remained open. Up to that time every per-
son entitled to attend had enjoyed an equal right of
voting, but this Act multiplied the votes of vestrymen in
proportion to the value of their rated property ; limiting,
however, the greatest number to be given by one vestry-mau
to six votes. The power to appoint select vestries for the
administration of the poor-law has been noticed above (p.
99). In 1831, Sir John Hobhouse obtained the passing of
a permissive measure (1 & 2 WilL 4, c. 60) for the reform
of vestries in populous places ; which might be adopted in
any town parish, or any rural parish having upwards of 800
rated householders, if a certain majority of the ratepayers
voted in favour of it. Upon its adoption, the ratepayers
of the parish were thenceforth annually to elect vestry-
men and auditors of parish accounts ; the vestrymen were
to vary in number between 12 and 120, according to the
number of ratepayers in the parish, and were to hold
office for three years, one-third of their number retiring
every year. Few parishes adopted this Act, which had,
consequently, a very limited operation.

Preservation of the Peace. — In the preceding year
the principle of plural voting, introduced by ISIr Sturges
Bourne's Act, was recognised in the Lighting and Watch-
ing Act of 1830, the provisions of which might be adopted
by any parish by a majority of three-fourths of the votes
of the inhabitants meeting in vestry to consider its
adoption; at which meeting the number of votes pos-
sessed by each inhabitant was to vary from one to six.

Local Government 103

according to the amount at which he was assessed for the
poor-rate. This act was rendered necessary hy the inade-
quacy of the old institution of the parish or petty con-
stables to keep proper watch and maintain the peace ic
the augmented state of the population. The same cause
had already led to the establishment of paid watchmen
and constables in many places under local Acts, and in
the previous year London and its neighbourhood had been
formed by Mr Peel into a Metropolitan Police District,
and the old watchmen superseded by a new system of
polica In places where the Act of 1830 was adopted a
certain number of substantial resident householders were
to be appointed as inspectors for three years, with power
to levy a watch-rate, which was to be collected, like the poor-
rate, by the overseers, and the maximum amount of which
was to be fixed by the inhabitants when they decided
to adopt the Act The inspectors were to appoint watch-
men, sergeants of the night, and patrols, who were to be
sworn in as constables, and were to guard against fires, rob-
beries, and breaches of the peace. The Act also provided
for the supply of fire-engines, and for lighting the streets
with gas. In 1831 an Act wa^ passed empowering any
two justices, in cases of apprehended disturbance, to
appoint special constables to assist in maintaining order,
and to make allowances to them out of the county rate.

6. Local Coiirts. — The decline of the old forms of
local administration, and the erection of new institutions
in their place, has proceeded at an accelerated pace since
the Reform Act of 1832. In the first place, the anomalies
connected with the existence of the remaining coimties
palatine have now been almost entirely removed. One step
in this direction was taken before 1832. For in 1830 the
jurisdiction of the court of session of the county palatine of

1 04 History of tJie English histitutiofis

Chester was abolished, and that county was snbjected in all
things to the jurisdiction of the superior courts at West-
minster. In 1 8 36, the secular authority of the Bishop of Ely
over the Isle of Ely was abolished. In the same year the
palatine jurisdiction over the county of Durham was taken
from the Bishop of Durham, and vested as a separate
franchise and royalty in the Crown. It is true that both
that county and Lancashire still retain their own Palalane
Courts of Chancery and Common Pleas ; but the practice
and proceedings in those courts have been now made, for
the most part, conformable to those of the superior courts
of Westminster. Again, the old local courts have been
now formally superseded. The trial of suits affecting
land in the courts baron, hundred courts, and comity
courts had, as we have seen, long fallen into disuse.
It continued, however, to exist in theory until 1833,
when it was taken away by the aboHtion of writs of
right and the other old forms of actions in respect of
landed property, and by the substitution of other
modes of proceeding which were only admissible in
the superior courts. In the same year, however, an
attempt was made to reinvigorate the jurisdiction of the
county courts in matters of debt. This attempt was
abandoned in 1846 in favour of a system of new courts
with all the jurisdiction and powers of the county courts
for the recovery of debts and damages, the judges of
which were to be barristers of experience appointed by
the Lord Chancellor, and removable by him for inabihty
or misbehaviour (9 & 10 Vict. c. 95). The establish-
ment of the system in different districts was at first left
in the discretion of the Queen in council, but it has now
been extended throughout the country. There are at
present 58 county court judges, each of whom, at frequent
intervals, holds courts at prescribed places within the

Local Government 105

district assigned to him ; and the total number of places
where such courts are held is upwards of 500. Tlie
judges are assisted by registrars, who transact the mort*
formal and less responsible part of the business. Tli<».
new courts have usurped the title of the old trilninals of
the shire, and are known as county courts; no 8uitr)rs,
however, have any jurisdiction in them. The judge ordi-
narily decides all questions, as well of fact as of law ; but
where the amount in dispute exceeds £5, either party
may require a jury of five to bo summoned to try the
action.

The Act of 1846 limited the jurisdiction of the new
county courts to actions or contracts for not more than
JB20, or for damages for not more than £5. liut their
powers have been much enlarged by sul)sequent Acts,
and they have now a jurisdiction in common law actions
to the extent of £50, in suits affecting the title to landed
property of which the annual value does not exceed <£20,
and in many equity matters to the amount of £500.
Some of them have also been constituted the local bank-
ruptcy courts, and have been entrusted with a limited
jurisdiction in Admiralty and testamentary matters, and
with various other powers. Eecourse to the coimty courts
in matters within their jurisdiction is enforced by the
enactment that a plaintiff who might have resorted to
them, if he sues in a superior court, in many cases loses
his costs even if successful; while, on the other hand,
parties who have a matter in dispute beyond the statutory
jurisdiction of the county court may by agreement pro-
cure its trial there. An appeal is allowed from the county
courts to the superior courts, but when the amount in
dispute is small, the leave of the county court judge must
be previously obtained. Upon the establishment of the
new county courts the former jurisdiction of thft qVvL

io6 History of t lie English Institutions

county courts and statutory courts of request as to small
de'jjts was to cease. But with regard to courts in respect
of which there were private rights, the Act of 1846
merely empowered any lord of a hundred, honour,
manor, or lil:»erty, who had any court in right thereof
in which debts or demands might be recovered, to vat
render to the Crown the right of holding such court
in respect of such debts or demands; and from and
after the surrender the court was to be discontinued, and
the right of hokling it to cease, so far as related to the re-
coverj' of debts and demands. In 1867, however, it was
enacted that no action or suit which could be brought in
anv countv court should be maintainable in anv himdied
or other inferior court, not l)eing a court of record; and
provision was made for the compensation of persons
entitled to any franchise or office in respect of these courts,
who might be losers by the abolition of their jurisdiction.
Manor courts are still held once or twice in the year, hot
only as customary courts for controlling and registering
dealings with copyhold lancL And a shadow of the old
constitution of the court is maintained by the requirement
that the homage or freeholders of the manor shall he
represented at its sittings by at least two individuals.
The machinery of the new county courts was not at first
extended to the city of London, but in 1852 a city of
London court for the recovery of debts, damages, and de-
mands not exceeding £50, was constituted in connection
with the Sheriff's court in London, with much the same
powers, regulations, and mode of procedure as the coimty
courts.

Ck>iistables. — ^The old offices of high and parish
constable have also considerably dwindled in importance.
In fact the latter, with the attendant pre-Xorman office of
head-borough or tithing-man, has almost Ix-come extinct

Local Government 107

lie appointment of high constables was in 1844 transf(»rred
t)in the quarter sessions to divisional special seB.sion»,
ad an arrangement was made for the cessation of their
iuties with respect to the collection of the C(nmty rates.
bid in 1869 certain other of their functions were trans-
ferred to the clerks of justices; and the quarter scissions
Were authorised, if they thought fit, to discontinue tln.^
office altogether in any hundred of the county. The first
direct step towards the abolition of parish consttibles was
inade in 1839, when the justices of any county in quarter
sessions, if they considered the existing staif of officers for
^e preservation of the peace in the county to be insuffi-
cient, were empowered to appoint a chief constable, who,
^ththe concurrence of two or more justices, might appoint
superintendents for the divisions of the county, and any
UTunber of petty constables to act under him. The ex-
penses of the force were at first charged on the coimty
^te, but afterwards on a pohce rate to be levied with the
county rate. The establishment of a county police was
not to interfere with the right possessed by municipal
boroughs to appoint their own constables ; but in the
Allowing year the justices of any county, and council of
ny borough, were empowered to agree together to con-
olidate their constabulary. County justices were also
athorised to divide the county into police districts, with
different nimiber of constables in each; the several dis-
icts in that case paying for their own constables. It
'as not at first contemplated that the county constabulary
lould supersede the old system of unpaid parish con-
chies, for in 1842 an Act was passed requiring justices
iroilghout the county to hold special petty sessions for
le appointment of the latter in the parishes of their
Lvisions; the power of appointing them being formally
iken away from the courfcs-Jeet. It was, "ho'wti^et, \vto-

io8 History of the English Institutions

vided, that where the vestry of a parish desired it^ the
justices might appoint paid instead of unpaid constables,
the expenses of the force being in that case defrayed out
of the parochial poor-rate. In other places the persons
appointed to be parish constables continued liable to a
penalty if they neglected to serve, unless they found a
substitute. In 1856, however, the establishment of a
county police force was made obligatory throughout the
whole of every county in the country, and power was
given to the Queen in council to require the division of
a county into police districts, and arrange the terms of
consolidation of the police of a county and borough;
and the development of the county police force which
has since taken place has rendered the appointment of
parish constables and tithing-men in general unnecessary.
It was therefore provided by an Act of 1872 that none
should be henceforth appointed for any parish, unless the
court of quarter sessions of the county should decide that
such appointment was necessary, or unless the vestries of
the parish should resolve upon the appointment

Justices of the Peace. — Since the first establish-
ment of county justices, we have hitherto seen the
augmentation of their powers and duties proceeding in
an uninterrupted course. But in 1842 the criminal juris-
diction of their court of quarter sessions, which had pre-
viously extended to almost every offence (including the
most heinous, such as murder), was limited to lesser crimes.
With this exception, however, the increase of their powers
has continued since the Eeform Act. Additional offences
have been made triable by summary proceedings at the
petty sessions, so that the number of these is now very
great. In the Metropolitan Police District, however, and
in some of the larger towns, many of their criminal duties
have been transferred to police magistrates and other

Local Government 109

stipendiary magistrates. We have noticed the duties which
have been thrown upon them of providing a county police,
and taxing the county for the purpose. In respect of
providing county lunatic asylums and raising rates for the
purpose, their powers and duties have also during Queen
Victoria's reign been considerably increased. We shall see
further traces of their powers in the other local institu-
tions which it remains to discuss. In one respect their
position is uniqua They are now the sole non-representa-
tive body who have the power of taxing their fellow-
countrymen. Considering the large figure at wliich the
county taxation stands, this state of things would not be
acquiesced in, were it not for the fact that the justices,
being chosen on account of their position and character
from among the land-owners of the county, retain the con-
fidence as well as the respect of the whole county. It
has, however, since 1860, been deemed desirable that the
Imperial legislature should be accurately informed as to
the state of county as well as parochial taxation; and,
accordingly, all clerks to corporations, justices, commis-
sioners, district and other boards, vestries, inspectors,
trustees, and other bodies and persons authorised to levy
rates, taxes, tolls, and dues, for the purposes of local
government and improvements in England, are required to
make an annual return of the amount and expenditure of
the sums levied to the Home Secretary, who is to lay an
abstract of the returns before Parliament But the returns
of the poor-rate continue as before to be made to the
central Poor Law authority.

Municipal Government. — A reconstitution of the
municipal corporations followed soon after the Reform
Act of 1832. By the Municipal Corporations Act of 1835
(5 & 6 WilL 4, c. 76), the exclusive rights of trading
existing in certain boroughs were abolished ; and the

1 1 o I I is to jy of the English Institutions

i-oiinoil of the l)ort.m<,'h, composed of a mayor, aldennen,
aiul ouuncilloi-s, was tlicnceforth to be elected by the
bui-jressi's, who woiti to consist of tlie persons occupying
liousivs and payin^j rat^^s in the borough. The coun-
cilloi's wi'iv to be themselves burgesses, and their
term of i»lfioo was ortlinarily to be three years, one-
third of thoir numl)er retiring on every Ist ^N^ovemher,
whon an clootion wa.>^ to be held to supply their places
TIio aldermen wei-e to be one-third of tlie whole number
of counoilloi*s, were to be chosen by the latter out of
their own bodv, and while in office were to be ex-
empt fnuu the liability to retire from the council in
rotation. They were to hold office for six years, one half
of their number retiring every third year. The mayor
was to 1h? elected annually on the 9th November by the
council from among themselves. The larger boroughs were
divided into wards, and the right of electing a certain
numl>er (^f councillors was given to the burgesses of each
ward. The burgesses were likewise to elect annually two
auditors, and either two assessors for the whole borough,
or where there were wartls, two assessors for each ward.
The council were empowered to appoint a town-clerk, a
treasurer, and other officers, and make bye laws for the
government of the borough, and were to constitute out of
their own body a watch committee, who should have the
apiwintment and control of a body of constables. The
expenses of municipal government were to be defrayed
out of the income of any corporate property belonging to
the borough, the surplus, if any, of such income being
devoted for the benefit of the inhabitants and improve-
ment of the borough; while, if the income from this
source uras inadequate to meet the expenditure, the defi-
ciency "was to be supplied by a borough-rate le\'iable in the
Ixxxough in the same way as the county-rate was leviable

Local Government 1 1 1

in a county. Nor did the Act omit provisi(jn for the loojil
administration of justice in the boroughs. In most cities
and towns corporate there had previously been fpiiirter
sessions, held before the mayor and resilient justices, fur the
trial of minor offences committed witliiu the municipal
boundaries ; and in performing their judicial duties these
magistrates were usually assisted by a ])arri8ter who iicted
as assessor to the mayor, and was called a recorder.
Moreover, in former times sundry special rights of crimi-
nal jurisdiction had, by local Acts, letters patent, or
charters, been granted to the mayors, bailifis, aldermen,
recorders, and other officers of divers boroughs. By the
Act of 1835 these rights were abolished, and the Crown
was empowered to appoint separate justices for any
borough, either unpaid, or, if the council made a bye law
to that effect, with a stipend out of the borough funds; and
also, upon a petition from the council, might constitute
in the borough a separate court of quarter sessions of the
peace, with all the criminal and many of the civil powers
of a court of quarter sessions for a county, to be presided
over by a barrister of not less than five years' standing as
recorder, who was to be ea; ojjicio a justice of the peace
for the borougL The Act extended to those cities and
towns which were counties of themselves, as well as to
others ; but the city of London was exempted from its
operation.

Poor Law. — ^The mal-administration of the Poor Law,
always a subject of complaint, had, at the time of the
Befoim Act of 1832, attained an unprecedented notoriety.
Within the preceding fifty years the poor-rate had been
quadrupled, and then reached the total annual sum of
£8,600,000. At the same time grievous abuses prevailed
in the modes of giving relief, partly in consequence of
the wide-spread practice, where a Gilbert Union was not

1 1 2 History of t/ie English Institutions

constituted, of farming out the lodging and maintenaniJ^
of the poor to contractors, who made the utmost possible
profits out of the transaction, and partly owing to th6
fact that there was no superior body to keep a watch over
and control the proceedings of the parishes and their ims-
management in reference to poor relief. This unsatisfactory
state of things led to the appointment in 1833, upon the
recommendation of Parliament, of a royal commission to
inquire into the subject. On the report of this commis-
sion was based the Poor Law Amendment Act of 1834
(4 & 5 AVilL 4, c. 76), by which, though its details have
been considerably modified by subsequent amending Acts,
our system of poor relief has ever since been mainlj
regulated. It placed the administration of the Poor Law
for five years under the control of a board of three Poor
Law Commissioners who were to be nominated by the
Crown, and were to have power to appoint assistant com-
missioners, secretaries, and other officers, and to make
regulations for the management of the poor, the govern-
ment of workhouses, and the guidance and control of
guardians, vestries, and parish officers, with respect to
the relief of the poor. But all regulations made by them
were to be submitted for the approval of the Home
Secretary, and were to be laid before Parliament at the
earliest opportunity. The duration of this board was af te^
wards from time to time extended till 1847, when it was
superseded by a board, consisting of the Lord-President
of the Privy Council, Lord Privy Seal, Home Secretary,
and Chancellor of the Exchequer for the time being, as
well as of other commissioners appointed by the crown,
one of whom was to be the president of the board, and
was after 1849 a member of the ministry, and after 1859
of the cabinet This board, to which the title of " Poor
Law Board" was afterwards given, was originally estab-

Local Government 1 1 3

^Mlied for five years, but by subsequent Acts was pro-
longed until 1871, when its powers were transferred to
the local goyemment board (see p. 118). By the Act
^i 1834, and subsequent Acts, the board was autho-
rised to require the erection and enlargement of work-
lionses, into which the able-bodied paupers should
be obliged to enter ; to consolidate several parishes
into one union with a common workhouse, under the
nanagement of a joint board of guardians, consisting of the
resident justices as ex officio members, and of other per-
lons elected by the rate-payers and owners of property in
he different parishes ; to dissolve or alter the limits of
inions ) and to direct that in any single parish the poor
aw should be administered by a board of guardians, con-
ftitnted in a similar manner to the board of guardians of
ji union. At the election of guardians owners of property
irere to have the same number and proportion of votes as
)rovidedby st 58 Greo. 3, c. 69 (see. p. 102), and ratepayers
¥ere to have one, two, or three votes, according as they
vere rated under iB200, between that sum and .£400,
)r above iB400. Wherever a board of guardians was
appointed they were to be the sole dispensers of relief,
except only that an overseer might give it in case of
ugent necessity, and justices might order outdoor relief
» the aged and infirm, and medical relief. Masters of
iTorkhouses, assistant overseers, and other paid relieving
>£Qceis of unions and parishes were to be removable by
hQ poor law board, who were also empowered to appoint
nspectors to visit workhouses and attend meetings of
l^uardians. The Act of 1834 provided for a proper audit
3f the accounts of the overseers; and to assist them
md the churchwardens in levying the poor-rate the
appointment of collectors and assistant overseers has
been authorised. By an Act of 1836 (6 & 7 Will. 4,

BNG INST 'H.

114 History of tJie English Institutions

c. 96), the power of deciding on complaiats by individuals
against the amount of the rate levied upon them was in
the first instance vested in the justices in petty sessions,
who were to hold quarterly special sessions for the piff-
pose ; but an appeal was permitted from their decision to
the quarter sessions. In any union formed by the boaid
the parishes were to contribute to a common fund for the
erection and maintenance of the union workhouse, in a
proportion calculated upon an average of the annual
amount spent by each parish in poor relief during the
three years preceding the formation of the union; but
each parish was to remain separately chargeable for the
maintenance of its own poor, whether relieved in or out
of the workhouse. The beneficial effects of the Act of
1834 are shown in the fact, that while relief was in con-
sequence better administered, and the really deserving
poor better cared for, the annual expenditure for the
relief of the poor was in three years reduced to the extent
of three millions. With the great increase that has since
taken place in the population and aggregate wealth of the
country, it has now risen to nearly the same figure as that
at which it stood before the Act of 1834. Though
this of course represents a far less heavy burden on the
resources of the country than it did then, there is no
doubt still room for improvement in the difficult subject
of the administration of poor relief.

Highways. — ^The subject of highways occupied the
attention of the reformed Parliament in the same year
as that of municipal corporations. By st 5 & 6 WiU.
4, c. 50, provisions were made for the annual elec-
tion of unpaid or paid surveyors of highways by the
vestry of every parish which maintained its own
highways. Power was given to the county justices
at quarter sessions, or special petty sessions, upon the

Local Government 1 1 5

ipplication of a parish vestry to constitute two or more
>arislies into a highway district^ and to select a surveyor
>f highways for the district out of persons nominated to
}hem by the different parishes for the purpose. The Act
ilso authorised in parishes with a population exceeding
5000, the appointment of a highway board, consisting
>f from five to twenty resident ratepaying householders,
who should act as surveyors of highways for the parish,
uid might appoint an assistant surveyor, clerk, and
treasurer. Surveyors of highways were to make up
uinual accounts, and lay them before their parish vestry,
and before the justices of the division, who were to hold
uinually at least eight special petty sessions for the pur-
poses of the Act, and were invested with many powers
and duties in reference to highways. The old statute
iuty for the repair of highways was abolished, but the
ratepayers keeping horses were empowered to agree to
apportion among themselves the labour of carrying
materials for the purpose, for which they were to be paid
after a rate fixed at the special sessions. Since the Act
of 1835 the subject of the local management of highways
has much increased in importance, owing to the gradual
abolition of turnpike trusts and consequent transfer of
those roads to the highway authorities, a process still in
progress: and in 1862 an Act was passed empowering the
justices of a county to divide it into highway districts
under the management of highway boards, consisting of
the county justices residing in the district and of way-
wardens elected annually by the parishes within the
district

Public Health. — Besides the police districts, the poor
law unions, and highway districts already mentioned,
certain further divisions of the county have been "msAe \xv
recent times for particular purposes. Both, "beio^e «xA

1 1 6 History of the English Institutions

since 1832, nmnerous local Acts have been pajssed, consti-
tuting large towns and their immediate neighbourhoods
and other places into districts for specific purposes, such
as pubKc waterworks, docks, and harbours, under the
regulation of elected and responsible boards. In 1847,
the general provisions usually contained in town improve-
ment Acts were consolidated into one Act^ which provided
for the exercise by the commissioners, trustees, or other
authority appointed by the local Act^ of divers powers
respecting the appointment of a surveyor and inspector of
nuisances and officer of health, the maintaining of seweis
and drains, the paving, repair, and cleaning of the streets,
the prevention of nuisances and other matters, and the
levying of rates to defray the expenses incurred.

In 1848 the first step was taken towards the general
establishment of a local organisation throughout the
country for preserving and promoting the health of the
people. An Act of that year (11 & 12 Vict c. 63), estab-
lished for five years a General Board of Health, consist-
ing of the First Commissioner of Woods and Forests as
president, and two other persons appointed by the Crown,
with power to appoint clerks and officers and superintending
inspectors. The board were authorised, in their discretion,
where a certain proportion of the ratepayers in any place
petitioned to that effect, or where the annual death rate
was above 23 per 1000, to direct a preliminary inquiry
into the sanitary condition of the place, and in case the
results of the inquiry justified such a course, to order all
or any of the provisions of the Act to apply to the place
in question. In any district to which the Act was ap-
plied a local board of health was to be constituted. This
board was, in the case of municipal boroughs, to be the
borough council, and elsewhere was to consist of substan-
fciaJ householders of the district (tlaa uTmLber being fixed by

Local Government 1 1 7

the general board), who were to hold office for throe years,
fio that one-third of the board should retire every year,
and were to be elected by the ratepayers of tlie district,
who were to vote by signed voting papers, and were to
have from one to six votes in the election, according to
the value of their rated property. The local boards might
appoint surveyors, inspectors of nuisances, medical officers
of health, and other officers. Various duties and powers
were reposed in them as to maintaining sewers, regulating
the erection of buildings, cleansing the streets, removing
nuisances, and as to other matters connected with public
health Wherever a local board was formed, they were
to be the surveyors of highways within their district.
They were empowered to make bye laws, which, however,
were not to come into force till approved by tlie Home
Secretary ; and the consent of the general board was by
the Act made necessary to many of their proceedings.
The expenses incurred by them were to be defrayed by
rates levied on the same persons and in the same propor-
tions as the poor-rate, an appeal to the quarter sessions
being permitted against the rate. They were also em-
powered to borrow money on the security of the rates.
The General Board of Health was continued in existence
till 1868, when its powers were transferred to the Privy
Council, and in the same year the Public Health Act of
1848 was amended by The Local Government Act 1858
(21 & 22 Vict c. 98), which allowed the councils in
boroughs, the improvement commissioners in places under
the jurisdiction of a board of improvement commis-
sioners, and in other places a meeting of owners and
ratepayers, to resolve on the adoption of the Act and the
consequent constitution of a local board.

Instead of carrying out the principle of local boards
of health throughout the country, the legislature, when

1 1 8 History of the English Institutions

in 1855 it was deemed necessary to make further pro-
vision for the removal of nuisances and prevention of
liisease, constituted for the purpose, in places wh^pe there
was no available local authority under any previous Act>
a nuisances removal committee, consisting of the surveyor
of highways ex officio, and of other members chosen
lomually by the parish vestry. The expenses incurred
were, however, to be defrayed not by a new rate, but out
of one of the existing local rates.

The Sewers Act of 1833, while regulating the powers
of commissioners of sewers, did not alter the districts for
which they were appointed under the Act of Hen. 8 (see
p. 90) ; but the Land Drainage Act of 1861 authorised
commissions of sewers to be issued for inland as well as
maritime districts, and permitted the establishment of
drainage districts, with elected drainage boards, who, as
respects those districts, were to supersede the commis-
sioners; and ample powers, including that of levying
rates, were given to the commissioners and boards.

In 1871 and 1872, the first steps were taken towards
simplifying the management of local affairs, particularly
in respect of sanitary matters, by reducing the number of
the authorities charged with the duty of attending to
them. In 1871, st. 34 & 35 Vict, c 70, reciting that
it was expedient to concentrate in one department of
the government the supervision of the laws relating to
the public health, the relief of the poor, and local govern-
ment, abolished the Poor Law Board, and established in
its place a board, to be called the Local Government
Board, consisting of a president, appointed by and holding
office during the pleasure of the Crown, and of the Presi-
dent of the Privy Council, all the principal Secretaries of
State, the Lord Privy Seal, and the Chancellor of the
Exchequer. Its members being all ministers, its com-

Local Government 1 19

position is entirely altered on a change of miniBtry. It is
empowered, with the sanction of the Treasury, to appoint
secretaries^ assistant secretaries, inspectors, clerks, and
other officers. To it are transferred not only all the
powers and duties of the Poor Law Board, but also those
of the Home Secretary with reference to the registration
of births deaths and marriages, public health, returns of
local taxation, drainage, improvement of* towns and
kindred matters, and those of the Privy Council with
reference to vaccination and the prevention of disease.
The Public Health Act of the next session (35 & 36
Victb c. 79) has further transferred to the new board the
powers of the Home Secretary and the Board of Trade
respecting highways and turnpike roads, bridges, metro-
politan water works, and various other heads of local
administration. The Act of 1872 has also entirely reconsti-
tuted the various sanitary authorities. The whole country
is now divided into sanitary districts ; boroughs, and
any districts formed under a previous improvement Act
and local government districts, being constituted urban
sanitary districts; while in other parts of the country the
poor law unions are constituted rural sanitary districts, l^
The sanitary authority of the district is the municipal
council, the improvement commissioners, the local board,
or the board of guardians as the case may be; and
to it are intrusted aU powers previously vested in the
local board, nuisance authority, sewer authority, or local
authority under any former Acts. Each sanitary authority
is to appoint a medical officer of health ; and the rural
authorities aie also to appoint inspectors of nuisances,
derks, treasurers, and other necessary officers. The rural
authorities may at any trme delegate their powers for the
current year to a conmiittee composed of some of their
own members; and may in any parishes within their

1 20 History of tJu English Institutions

districts form parochial committees, composed in like
manner, with or without the addition of competent rate-
payers of the parish. The expenses of the urban sanitary
authorities are to be defrayed, where the Local Grovemmeiit
Acts are in force, in the manner directed by those Acts,
and elsewhere, out of the borough fund or borough rate,
or out of the rate leviable by the Improvement CommiB-
sioncrs as the case may be ; and those of the mial
sanitary authorities are to be defrayed in part out of the
poor-rate of the constituent parishes, according to their
rateable value, and in part by a separate rate specially levied
on the parish or drainage district, for the particular benefit
of which an outlay may have been incurred. Provision
is made for the appointment by the Local CrOYemment
Board of special sanitary authorities in ports, and for
altering the boundaries of districts, converting a rmal
into an urban sanitary district, and uniting two or more
districts into one, under a joint board, upon application
by the district authority. The Local Govemment Board
is also intrusted with the extraordinary power, upon a
similar application, of repealing, altering, or amending,
with certain few exceptions, any local Acts relating to
sanitary matters which may be in force in any district

Metropolis. — ^The present local govemment of the
metropolis was organised in 1855. The afifairs of each
of the metropolitan parishes (exclusive of those in the
city) are now managed by a body of vestrymen propor-
tionate in number to the population of the parish, and
consisting of substantial ratepayers, who are elected by
the ratepayers of the parish, or, where the parish is large
and divided into wards, by the ratepayers of the different
wards ; a certain number of vestrymen being assigned to
each ward according to its size. Auditors of accounts are
also elected annually for each parish or ward. Som^ of

Local Gavemmefit 121

the parishes are grouped into districts, for each of which
there is a board of works composed of members elected
by the parochial yestries of the districts. Besides these,
there is a Metropolitan Board of Works, composed of
members elected by the council of the city of London, by
the district boards, and by the vestries of parishes not
included in any district. The members of the ^letro-
politan Board, district boards, and yestries, unless elected
to supply an intermediate vacancy, hold ofl&ce for three
years, and one-third of each of these bodies goes out of
office annually.

The Metropolitan Board is intrusted with the manage-
ment of the main drainage of the metropolis, and with
the power of making various improvements, and of con-
trolling the action of the district boards and vestries, and
is authorised to levy metropoUtan rates to defray its
expenditure. To the district boards, and the vestries of
parishes not included in a district, is committed the branch
drainage, and the general control over the buildings,
streets, water supply, lighting, and sanitary arrangements
of their district or parish, with power to levy local rates
to meet the requisite expenses.

Education. — The subject of education, which was
originally dealt with exclusively by the central executive,
has by recent legislation been brought within the domain
of local administration. The matter was first taken in
hand by the State in 1834, when a small grant was made
by Parliament to aid in building school-houses. The
fund was to be distributed by the Treasury, and was to
be appropriated, in part to Church Schools through the
medium of the I^ational Society, and in part to the
schools supported by the British and Foreign Schools
Society, in which the religious teaching was of no dis-
tinct denominational character. In 1839 "Lot^ ■^'^-

122 History of the English Institutions

bourne's Government vested the management of the
annual education grant in a committee of the Privy
Council, who administered it in aid of schools erected
and supported in part by voluntary contributions. Owing
to the liberality with which these latter were given, this
theoretically imperfect scheme provided to a very tole^
able extent for the education of the poor; but in 1870
it was deemed necessary to supplement it by more direct
legislation. While the semi-voluntary semi-State-supported
system has been left to go on as before, the Elementary
Education Act of that year has established by its side a
local organisation to supply its deficiencies. The metro-
polis, the boroughs, and rural parishes are constitated
school districts. In every district there is to be provided
sufl&cient accommodation in public elementary schoola
(including those supported wholly or in part by volun-
tary efforts) for all the children of the district for whoae
elementary education provision is not otherwise made. A
school board is estabhshed in the metropolis, and in every
other school district in which the committee of the Privy
Council on Education, or, as it is called, the Education
Department, authorise its establishment ; which they are
empowered to do if, after an inquiry and due warning,
they find a deficiency of elementary school accommoda-
tion in the district, or if an application is made to them
for the purpose by the council in case of a borough, or
elsewhere by the ratepayers. The department have power
to unite two or more school districts into one, or to make
one district contribute towards elementary education in
another district. The Act of 1870 limited the term of
ofl&ce of members of school boards to three years, at the
expiration of which there was to be a new election. The
details of the election were left to be settled almost
entirely by the Education Department; but it was en-

Local Government 123

hat in the case of the metropolis members should
3ted to represent certain specified divisions, and
le novel practice of curmdative voting should be
edy that is to say, each voter should have as many
8 there were members to be elected in his division,
ight give them all to one candidate or distribute
mong the candidates as he should think fit. The
ion Department extended cumulative voting to
3tion of borough school boards, and while in these
Bribed the use of signed voting papers, it intro-
into the elections for the London School Board,
in the city of London, the additional novelty of
(Toting. The electors were to be in boroughs the
lee, in the city of London the persons entitled
;t the Common Council, and elsewhere in the
alis the body of ratepayers. The School Boards
udon and for many of the larger towns were
at the close of 1870. The boards are to erect
sdntain sufficient schools; they may accept the
r (if made to them by the managers) of schools
) supported voluntarily, and may pay the fees of
1 of indigent parents at voluntarily supported
* They may also make bye-laws rendering it com-

on parents to send their children between 5
years of age to school, unless prevented by good

Their expenses are defrayed by the school fees,
share of the Parliamentary grant which their
receive; and the deficiency is made up out of the
,tes, upon the security of which the board may

money for the erection of school buildings.

.8 ft 19 Vict. c. 34. (Denison's Act) had already authorised
i to assist persons receiving out-door relief in the education
children. But this Act had practically remained a dead

1 24 History of the English Institutions

Where a school board neglects its duty the Education
Department may supersede it by temporarily themsdveB
appointing a new board, or may at once dissolve the
board, and direct a new election.

The Act of 1870 provided that the Parliamentary
grant should be given in aid of voluntary and board
schools alike, but should in no case exceed the amount
of the income of the school derived from voluntary con-
tributions, school fees, or other sources. It required that
no denominational religious teaching should be given in
board schools, and that in them, as well as in other
schools receiving the Parliamentary grant, religious ob-
servances and instructions should be confined to the
beginning or end of school, and no child should l)e re-
quired to attend any religious observance or instruction
objected to by the parents; and it at the same timedis^
continued the examination in religious subjects by the
Government Inspectors which had been previously held.

By an Act of 1873, amending the Act of 1870, the
granting of out-door relief to poor persons is made condi-
tional upon their sending their children to school \ ^
guardians are required to furnish them with the mean^
of doing so. By the same Act, the method of secie^
voting, prescribed by the Ballot Act of 1872 (see p. 175)
is extended to the elections of all school boards.

PART IL
CoxMitnmti of t|)e Central 9[utf)oritp.

CHAPTER IV,

THE KING.

L Origin of Royalty. — ^Although the kingly office was
not at the time imknown among the Teutonic tribes on
the Continent, the various bands of Angles, Jutes, and
Saxons appear to have settled in this country under the
leadeEBhip of a Jieretoga as chief military commander, and
tn ecUdorman as highest civil magistrate; the same indi-
vidual in many cases holding both offices. Very soon,
however, owing perhaps to the increase of dignity and
power which would accrue to the leader from the very act
of conquest, we find the heads of the principal tribes
assuming the title of king. As the name seems to imply,^
the individual holding this position was from the first
looked upon as the representative of the whole nation,

* " Cyningf by contraction king, is probably closely connected with
the word eyn or kin, , , , The king is representative of the race [or
kin], the embodiment of it in its national being ; the child of his
people, and not their father." Freeman's " Norman Conquest," i. 82.
Others, however, like Carlyle (see " Heroes and Hero-Worship," Lects.
i., vi.), connect the word, the German form of which is kUnig, with
"can (Gtenn. kSnnen), and understand it to mean the canning or
able man.

1 26 History of the English histitutions

and tlie process of his elevation to the dignity, and his
duties and powers when holding it, were in accordance
with this idea.

In Teutonic communities the possession of the highest
office of the State in the first instance depended, as did
that of property in land, on the will of the community
at large, who assigned the office to a particular indi-
vidual for his life, with the power of revoking the
gift at any time for misconduct. But the idea of some-
thing more than this seems to have heen very eariy
attached to the title and dignity of king.^ The possession
of this office was looked upon as conferring a right which
was more than merely personal, and did not altogether
cease with death; but was transmissible to the kin^s
descendants or nearest of kin, and subsequently even
became liable to be disposed of by his testament The
feeling of reverence with which the office was regarded, ifl
shown by the prevalent tradition that the royal family was
descended, as among the early Greeks, from the national
gods. The same feeling was expressed and perpetuated
by the solemnities with which the ceremony of coronation
was attended, and particularly the use, in Christian tunes,
of the anointing oiL

Pre-Nonnan Kings. — From the first settlement of the
Angles and Saxons in Britain, down to the accession of
William the Conqueror, a combination of the elective and
hereditary principles regulated the succession to the throne
of the most powerful kingdom in the country. The
extent to which the hereditary principle grew, is seen
from the fact that persons of royal blood received as such
the special title of -^theling. And we, in fact, find that
from the establishment of the kingdom of Wessex by

' Tac. Germ. c. 7. Rtges ex nobilitate, duces ex virtute samoni

TIieKing 127

Cerdic in 619, until within fifty years of the Norman
conqnest, the West Saxon crown first, and then the im-
peiiaL English crown, was always worn by his descendants.
After the intrusion of three monarchs of the Danish royal
family, it reverted once more to his race, to he transferred
for one brief year to a stranger in blood, and then to pass
to a successful invader.' But during all this time that
crown was never placed on the head of any one, whether
a descendant of Cerdic, or, like Harold, a claimant under
the will of the preceding king, or a Danish or Norman
conqueror, unless his accession had been pre\4ously sanc-
tioned by the Witenagemot, or generid council of the
nation. The granting or withholding of this sanction
was a vital matter; not a foregone conclusion, as was the
second election by the clergy and people, who, during the
coronation ceremony, responded by affirmative acclama-
tions to the demand whether they would accept the pro-
posed individual as their king. The exercise of the power
of election by the Witenagemot enabled a minority to be
averted by the choice of a brother of the deceased king
instead of his infant child. It was thus that the great
.ZEUfred obtained the throne. In consequence of this, we
find only two instances — and those immediately following
each other, and owing to the same circumstances — of
minors being raised to the English tlirone before the Con-
questb Upon the death of Eadgar, in 975, leaving two
sons, aged thirteen and seven years respectively, there was
no near male kinsman of full age who could be chosen to
succeed, nor any man of commanding pre-eminence in the
nation in whose favour the hereditary principle could be

■ In the person of Henry II., through his mother Matilda, the
crown was restored to a descendant of Cerdic in the female line, and
has ever since been worn by individuals having the blood of the West
Saxon king in their veins. This, however, is obviously ?LCc\A.cxi\al,
and is not due to the hereditary principle in the succession..

1 28 History of tfie English Institutions 1

set aside, as it was later in the case of Harold. Accot^
ingly Eadward, tlie eldest son of Eadgar, was cho5^
king, though not without a dispute whether his young^
brother -ZEthebed should not be preferred to him; aJJ-^
upon his murder three years later, that brother, thou^^
then only about eleven years old, was accepted as Y^i^
successor. The Witan also possessed the right of depo^"
ing the king, — a right which they asserted in the cases oi-
Sigeberht of Wessex (a.d. 755) andiEthelred EL (a.d. lOlO*
whom they restored to the throne in the following yea^-
In one instance they took part in the settlement during
the lifetime of the king of the subsequent succession, ioT
they confirmed the will of -^thelwulf, which affected U>
dispose of his regal dignities among his son& The same
king also procured his youngest son i^lfred to be anointed
king by the Pope during his life. The order of succession
prescribed in the royal testament was not, however, im-
plicitly observed; nor did the premature coronation of
-^Elfred avail to place him on the throne before his elder
brothers. On the other hand, on the death of Eadward
the Confessor, the Witan followed his last wishes respect-
ing the succession, by choosing, as king, Harold, to whom
he had upon his deathbed committed the kingdom.

2. Early Norman Kings. — At the Norman Conquest
the due succession to the crown suffered a violent inte^
ruption; but in the accession to the throne of the mem-
bers of the new royal family, we find that the hereditary
principle, though great stress is always laid upon it, is yet
controlled, as before, by other considerations, among which
that of election continues to hold a prominent place.
After King Harold had fallen on the field of battle, and
the English Witan had found it impossible to sustain
iheir choice of Eadgar iEtheling as his successor, they, a

The King 129

few weeks later, practically revoked that choice by seini-
ng an invitation to William to ascend the vacant tlirone.
It was only after this invitation, and after tlie ceremony
of coronation had been performed in the old Englisli form,
vhen the unanimous voice of the asseniLliid i)('0])le
accepted him as their king, that William assumed the
'^dignity. Upon his death his second son Kufus, with
110 shadow of hereditary right, succeeded, not so much })y
^^e of his father's arbitrary bequest, as by tlio coiisciut
of the nobility of the land, and of the Archbi.sliop T^m-
^'^j who possessed and exercised the power of i)erf()nu-
^ over him the solemn rite of coronation. His successor,
Heniy L, owed the crown to the choice of the barons and
P^tes assembled at Winchester, supported by the mass
of the people there, — a choice confirmed a few days after-
wards by the acclamations of assent at his coronation in
TTestminster Abbey. It was upon this title of election
that he as well as the next king, Stephen, relied*; and
John's right to the throne depended upon the same title.

To form an estimate of the degree of weight which a
previous settlement by the king for the time being, with
the consent of the great council of tlie nation, was con-
sidered to carry, we may adduce, on the one hand, Henry
L's "onsuccessful endeavour to secure by that means the
succession of his daughter Matilda and her son Henry;
and, on the other, the effectual arrangement made in
Stephen's reign in favour of Henry, which led to the un-
resisted accession of the latter upon Stephen's death.

The importance attached to the solemn act of corona-
tion itself, with the rite of anointing which formed part
of it, is indicated (i.) by the desire of Stephen that his son

* Henry styles himself, " Ego nutu Dei a clero et a populo Anglise
electns." And Stephen, "Ego Stephanas Dei gratia assensu cleri et
populi in regem Anglorum electus."

BNG. INST. \

1 30 History of the English Institutions

Eustace should during his lifetime be anointed by the
Archbishop of Canterburj', whose refusal to comply with
it was visited by banishment from the country; (ii) by
the fact that Henrv IL procured the coronation of his
eldest son, whom, however, he outlived; and, (iii) by the
hurried performance of the ceremony over Henry IIl->
when at the age of nine years he was left heir to the
throne by the death of his father John. Until Edward
L, the reigns of our kings, both before and after the Con-
quest, dated from the day of their coronation, there being
no recognition in those times of the maxim subsequently
imported into our law, tliat "the king never dies;" by which
is meant, that the next heir ascends the throne at the very
instant of the death of the previous sovereign. The
change of practice in Edward L's case, whose reign dates
from the day on which the barons swore fealty to him in
his absence four days after his father's death, was due to
his being in the Holy Land when his father died, and to
the inconvenience that would have arisen had the throne
been deemed vacant until his return.

3. Growth of the Hereditary Principle. — In the

fourteenth century the i>ower of the national assembly to
depose the king, of which we have noticed instances
before the Conquest, was again exercised in the cases
of Edward II. and Eichard IL But from the latter
a previous, and from the former a subsequent, resignation
of the crown was extorted ; and, whUe in the case of
Richard IL the greater weight seems to have been attached
to the act of deposition, in that of Edward IL it was
the kmg's own resignation which was publiclv put forward
as the ground for the accession of his son. ^ At the same
tme the pnnciple of a strict hereditary succession was
gradmdly becommg stronger. It cannot be said that the

The King 1 3 1

Act of 1350 (25 Edw. 3, st 1), which placed the cliildi-eii
of the king bom out of England on the same footing with
those bom within the realm as regarded the riglit to
succeed to inheritances, did much to advance it. I^ut it
received a decided development in the succession, on the
death of Edward IIL, of his grandson liichard, as repre-
senting his deceased eldest son, the lilack Prince. On the
other hand, the accession of the Lancastrian dynasty was
in violation of it, and depended on the acquiescence of
the Parliament and people; but Henry IV. showed his
appreciation of hereditary right by dwelling on his own
descent from Henry IIL, and also by obtaining an Act of
Parliament (7 Hen. 4, c. 2) to the effect that the inherit-
ance of the crown should remain in him and the heirs of
his body issuing. This arrangement was altered by a
Parliament in 1460, which declared that Henry VI. should
wear the crown for life, and that after his death it should
devolve on Eichard Duke of York, who possessed the
better title by birth. The duke was shortly afterwards
defeated and slain at Wakefield, and when in the next
year his son Edward entered London after his victory at
Mortimei^s Cross, first the lords assembled in council, and
then the acclamations of the people, decided that Henry
should no longer be king, because by making war on
Duke Eichard he had violated the arrangement made by
hiTnaftlf and Parliament as to the succession of the crown,
and that Edward LV. had good right to the crown, — first,
as son and heir of Duke Richard, the lawful inheritor
of it; and secondly, by authority of Parliament and the
forfeiture committed by King Henry. In the Acts
of Edw. 4*8 reign, the monarchs of the rival line are
always referred to as ** late in deed, and not of right, kings
of England." Eichard IIL was declared king by the popular
voice in a somewhat similar way to his brother. In

132 History of tlu English Institutions

Hen. 7*8 reign we find another settlement of the crown
by Parliament, namely, that the crown should remain
in Henry VIL and the heirs of his body for ever, and in
none other (st. 1 Hen. 7, Tit Reg.) This settlement has
been so far observed to the present day, that every sub-
sequent English monarch has been a lineal descendant of
Henry VIL

Disposition of the Crown by Parliament. — The
coronation of Henry VIIL appears to have been the last
occasion in which the assent of the people to the perform-
ance of the rite was formally asked during the service.
In the reign of this king the power of Parliament to regu-
late the succession was twice exercised, — ^first, by an Act
(28 Hen. 8, c. 7) entailing the crown on the king's sons
by Jane Seymour or any other wife, and then on the king's
legitimate daughters, and giving power to Henry, in case
of default of such sons and daughters, to dispose of the
crown by letters patent or will as he should please ; and
secondly, by st. 35 Hen. 8, c. 1, which introduced into
the succession Henry's two daughters, Mary and Elizabeth,
and their issue, with such conditions as Henry should
impose by letters patent or by his wilL

4. Successors of Henry VIII. — Edward VL united
a strict hereditary to a parliamentary title. His attempt
to exercise in favour of Lady Jane Grey, without the
authority of Parliament, the power of appointing a suc-
cessor which Parliament had granted to his father, was
repudiated by the nation, who accepted as his successors
his two sisters, one or other of whom had clearly no claim
on strictly hereditary principles. In the reign of the
second, Elizabeth, an Act was passed declaring it to be
treason either to deny the right of Parliament to direct
the descent of the crown, or to aflSrm in writing that any

T lie King 133

person, other than the queen's issue, was her lawful suc-
cessor, until the point should be settled by Parliament
The latter enactment virtually amounted to a retrospec-
tive repeal of the power given to Henry VIII. to appoint
a successor, failing the issue of his children, wliich he had
exercised in favour of the children of his sister Mary,
Queen of Franca And this appointment was openly set
aside when James L, the descendant of Henry's eldest
sister, Margaret, was accepted and crowned king on the
strength of his hereditary right as lineal heir of Henry
VIL, backed by considerations of expediency. But after
his coronation it was deemed proper to confirm his title
by Act of Parliament (1 Ja. 1, c. 1). In the first year of
Mary's reign it was laid down as law, that when the kingly
office devolved upon a female, she became invested with
the royal prerogatives equally with a king, and that all
statutes in which the latter was named applied equally to
a queen (1 Mar. sess. 3, c. 1).

The Stimrt Monarchs. — ^The fact that, after the
restoration of Charles II., the years of his reign were
reckoned from the death of his father, was a distinct
recognition of his inherent right to the crown by birth
alona Yet even in his reign it was by no means gene-
rally admitted that an hereditary claim to the succession
was absolutely indestructible. The exclusion Bill for
omitting James Duke of York from the succession, and
transmitting the crown as if he were dead, which in
1679 and 1680 actually passed the House of Commons,
was an attempt to exert, against the wish of the king,
the parliamentary control over the succession, which
had at the instance of the reigning sovereign been exer-
cised in the reign of Hen. 8, and asserted in that of Eliza-
beth.

The conduct oi James, when on tlie thione, ^xo^mc.^^

1 34 History of the English Institutions

another crisis in the history of the monarchy. After his
second flight, the Convention Parliament, while it tm-
doubtedly in fact committed the act of deposing him and
selecting his successor, veiled the transaction under the
fiction of a voluntary abdication. They resolved " that
King James the Second, having endeavoured to subvert
the constitution of the kingdom by breaking the original
contract between king and people, and, by the advice of
Jesuits and other wicked persons, having violated the
fundamental laws, and having withdrawn himself out of
this kingdom, has abdicated the government, and that the
throne is thereby vacant." Of course, looking to the
hereditary principle alone, an abdication by James would
have transmitted the crown immediately to his son.^

6. Acts of Settlement. — In the following reign oc-
curred the two latest instances of parliamentary legislation
upon the succession to the crown. Upon the accession of
William and Mary the crown was settled on them during
their joint lives,^ and on the survivor after the death of
either; then on the lineal heirs first of Mary, then of Anne,
and lastly of William. But it was at the same time enacted
that, whereas experience had shown "that it is inconsistent
with the safety and welfaire of this Protestant kingdome

* In Scotland, where the government was earned on without tiie
presence of the king, so that his flight carried with it no appearance
even of abdication, the Convention assembled by William plainly
declared, " That James VII. , being a professed Papist, did assume the
royal power, and acted as king without ever taking the oath required
by law, and had, by the advice of evil and wicked councillors, invaded
the fundamental constitution of the kingdom, and altered it from a
legal limited monarchy to an arbitrary despotic power, and hath
exerted the same to the subversion of the Protestant religion and the
violation of the laws and liberties of the kingdom, whereby he hath
forfaulted" (i.6., forfeited) " his right to the crown, and the throne has
become vacant. "

• But the regal power was to be exercised by William alone in the
joint names of both.

The King 135

*^ he governed by a Popish prince, or by any king or
^'teene marrying a Papist," persons who should either T>e
ftemselves members df the Church of Rome, or should
Bany a Papist, should be incapable of holding the crown;
rbich should, in any such case of incapacity, descend to
le nearest Protestant in the line of succession (1 Will. <fe
[iap., sess. 2, c. 2). On the death of Mary without issue,
id of the Duke of Gloucester, the last surviving chdd of
one, who, like his brothers and sisters, died at a very
riy age, it was enacted that, on failure of the lines iii-
ided in the succession by the previous Act, the crown
OTild devolve on the Princess Sophia of Hanover,
lighter of James L's daughter Elizabeth, and the heirs
her body, being Protestants. Besides a repetition of the
ovision disqualifying a person who should become or
ould marry a Papist, it was now enacted that all future
veieigns should join in communion with the Church of
igland as by law established (12 & 13 Will 3, c. 2).
ad by 6 Ann. c. 41, s. 2, it was enacted that if any
raon should maintain that " the kings or queens of this
aim, with and by the authority of Parliament, are not
le to make laws and statutes of sufficient force and vali-
ty to limit and bind the crown, and the descent, limita-
)ii, inheritance, and government thereof," such person
onld incur the penalty oi prcemunire,

6. Present Succession. — Happily for the country,
6 limitation of the succession made in 12 & 13 WilL 3,
been maintained to the present day without having
BT required, and without, according to present appear-
iceSy being likely to require a further supplement ; nor
18 the necessity ever arisen for passing over an heir to
e crown on the ground of religious disqualification.

IM'

ff/sfrn- r/ t/w Eu^lis/i Institutions

rAKL:A>[EN"T.

t •■

\ W-.tv-r.A^ciot. — ^v;•., :i s*-vrril ot rlie Teutonic
i"- ^-s. '\. ■•■ ,■ '■■■.!".^-:-" ^:^•■: ■.■•."' i'.t* ii2.ij«l''ci. a newas-

■V 1.- -V - .-. - .,\ -• :.i.j;i TiLTt in the
V "■■■...••■* ••■•::" rliif r:_:iir f:«:'Ci

•. -.. . \~>

»- >.

>x ..• . •

■■>*».

:> .Z'.L 'lit- '"'•""t ?!'

*

-T».

Parliament 137

^ witenagemots of the other kingdoms sank into the

lotion of local deliberative assemblies, subordinate V^

^ Witenagemot of England. The first traces of what is

^ed Privilege of Parliament, or the peculiar immunities

^oyed by members of tliat body, api)ear in a law of

^thelberht about the close of the sixth century, to the

®«ect that if the king summoned his people to him, and

*Dy one did an injury to them there, he should give

double compensation, and j^ay 60 shillings (solidi) to the

AiQg besides.

2. Great Council. — After the Conquest the place of
he Witenagemot was supplied by a purely feudal assembly,
insisting of the barons and others who held immediately
ader the Crown, and called the Magnum Conciliujn, or
recti Council. The lay and spiritual heads of the coun-
38 — the comites (counts or earls) and the archbishops and
shops — ^had seats in it, as in the Witenagemot ; for the
rmer were the leading barons in their respective sliires ;
id a barony was at the Conquest attached to each epis-
pal see. A similar annexation of a barony to many abbeys
id priories gave the privilege of attendance to the abbots
id piioi& Besides these, not only all the other greater
LTonSy or, as they were afterwards simply called, barons,
it also the lesser barons, or military tenants in cajritc, had
jb light to be present. The council was presided over
r the king in person, or, if he were absent from the
ngdom, by the chief-justiciary. The frequency of its
eeting greatly increased in the reign of Hen. 2, who
imxnoned it twice or thrice during every year of his stay
. England. That monarch early infringed upon the
uely feadal character of his Great Council by introducing
16 practice of sending a special writ of summons to the
.diyiduals who were to attend. The receipt of a sum-

1 38 History of the English Institutions

mons, and not the possession of a barony, was now con-
sidered as conferring tlie right to be present, while the
omission of a summons would debar a baron from at-
tending ; and the king in some cases issued summonses to
persons who had not the old feudal qualification. Heniy
and his successors were thus able to introduce into the
council lawyers and clerks, whom they desired to raise to
judicial or administrative offices, and to make memheis
of their ordinary council We shall see at a later period
of the history how the habit of receiving summonses was
at length considered to confer an absolute right to receive
them, not only on the individual himself, but also on his
heir, — how, in short, the seats in the House of Lords, into
which the Magnum Concilium had been then converted,
became permanent and hereditary, and its members reco-
vered their original right to attend independently of the
caprice of the king.

Attendance at the Great Council has, in the preceding
paragraph, been spoken of as a right or privilege, but it
was equally looked upon as a duty. The presence of the
barons at the king's court was in fact a pledge and security
for their continuance in allegiance to him. Accordingly,
those who did not present themselves were liable to a fine,
unless they obtained the king^s license to appear by a
procurator or proxy. Thus originated the right of the
peers to record their votes by proxy, which they continued
to exercise until 1868.

While such was the origin of the position of the nobility
in Parliament, the presence in it of the other two estates
of the realm, the clergy and commons,^ was secured but
gradually and fitfully ; and, in the case of the former, was

^ The three estates of the realm are the Clergy, Lords, and Commons ;
the three estates of Parliament are at present the King, Lords, and
Commons.

Parliament 1 39

to be of but short duration. In llt*n. 2'.s n-ign

we read on one occasion that deans an<l archduacons, as

the historian has it, " without nuniT)er" wore pn?8<*nt at the

GieatCoimciL At another time almost all the knights of

tiie realm are said to have attended. liut neither deans

and archdeacons nor knights appear to have had any voice

in the deliberations of the council

Bepresentation. — ^The system of rcpr(.'flt;ntiition first
appears in the composition of the national a8.s(*iii])ly at
the commencement of the thirteenth century. In 1 2 1 3 the
iheiifb were directed by the king's writ to sen<l to him
bur discreet knights of each shire, cul loquctulum nohfHcnm
h negotiia regni nosfri, " to hold parley with us concerning
he aflEairs of our realm." These knights were pro})ably
.ppointed by the 8herii£ Their number was the same as
hat of the knights who at that time were summoned to
elect the recognitors for the grand assize and the grand
uiy for the county. (See ch. viii.)

In the same year John summoned the town-reeve and
our lepresentatiye men from every township in the royal
lemeane, to confer with him on the aifairs of his kingdom.
Lb the boroughs were for the most part held in demesne,
Mb aummons may be said to have involved a representa-
ion of burgesses, and the assembly in which they met is
tjled a council The Archbishop of Canterbury and other
liahops and nobles were present, and it was presided over
ty the chief-justiciary, who, in the name of the king,
nononnced a confirmation of the laws of Hen. 1.

Neither county nor borough representation in the
lational council is contemplated by Magna Carta, which
neeciibes that for assessing an extraordinary aid, or the
leuiiMgej the king shall summon by writ the archbishops,
liahops, earls, and greater barons, and shall also summon,
through the sheriffs and king's bailiffs, all who hold of

140 History of ttie English Iftstitutions

the king in capite. But instances of the lepresentatioiL
of the counties by chosen knights occurred on several
occasions in Hen. 3's reign. Thus in 1254 the shmfis
were required to send from each county to the kin^s
council at Westminster two qualified and discreet meD)
whom the county should choose as its representatiyes, for
the purpose of determining what aid they would grant to
the king for his expedition into Gascony. Each sh^
was to explain the king's necessity to the knights and
others of the county, and induce them to consent to an
adequate aid, so that the representatives might contf
prepared to name the amount which their county woulc
contribute. In 1261 the confederate barons issued son
mouses, which were afterwards confirmed by the kinj
for the attendance of three knights from each shire t
discuss the common affairs of the realm. The fiK
summons of burgesses to Parliament was in 1264, whe:
writs were issued by Simon de Montfort, in the name c
the king, to the sheriffs for the return of two knights fo
every county, and to the cities and boroughs for th
return of two citizens or burgesses from each, to delibeiat
on public affairs. The principle of representation cod
tinned to be occasionally recognised during the next thirfr
years, but it was not until 23 Edw. 1 that the Lower Hous
can be said to have been regularly constituted. The nam
of Parliament appears to have been first applied to th
assembly early in that reign.

The Clergy. — As regards the attendance or represei
tation in Parliament of the estate of the clergy. In 121
the deans attended the council as they had done in Hei
2's reign. The practice of proctors or deputies from tl:
inferior clergy attending Parliament began in Hen. 3
reign. There is an undoubted instance of it in 125
and it apparently took place on a few occasions previousl

Parliament 141

They were summoned by Edward I. in 1283 and 1294;
and in 1295 (23 Edw. 1), what is called the pr(e77iunieHte8
clause, because it begins with that word, was for the first
time inserted in the summonses of all the bishops, requir-
iDg them to bring with them to Parliament the prior or
dean of their cathedral church, their archdeacons, and one
proctor for the chapter, and two for the clergy of the
diocesa The prannunientes clause became a regular form
in the summonses of the bishops, although the clergy soon
ceased to attend Parliament They met instead in their
provincial convocations, to which they were summoned by
tile archbishops, and as they there fulfilled the object for
which they were summoned to Parliament, namely, the
voting of subsidies from their own order, they were excused
fiom attendance at the national council. The discon-
tinuance of their attendance was the more easy from the
feet that, when present, they had always formed a distinct
hody, and voted apart from the knights and burgesses.

8. Parliament. — From the final division of the
assembly into two houses, it will be convenient to postpone
Reconsideration of the changes which the composition
^^ each house has since undergone, and to deal first with
otters affecting the two houses alike, or Parliament as a
^ble.

Ueeting of Parliament. — Thrice in the course of
tile reigns of Edw. 2 and his son we find enactments
tiiat a Parliament shall be held annually, or twice in the
year if need be, and that in a convenient place, for the
maintenance of the statutes and redress of divers mischiefs
and grievances which daily happened (5 Edw. 2, c. 29;
4 Edw. 3, c. 14; 36 Edw. 3, st. 1, c. 10). But the
tendency on the part of our kings and their counsellors
to neglect the annual assembling of Parliament, which is

142 History of ttie English Itistitntiom

indicated by the necessity of repeating this enactmeA
continued to prevail notwithstanding its reiteratioiL

Privilege. — ^The privilege of Parliament, the germs o*
which we saw before the Conquest, and which had aincfi
been partially recognised, was distinctly confirmed by at ll
Hen. 6, c. 1 1, which punished assaults upon memben oi
their way to Parliament. The privilege of freedom froU
arrest during the session was asserted by the Commons it
the following reign; and in 4 Hen. 8, Parliament bj
statute annulled a sentence which had been passed anc
l)enaltie8 which had been inflicted by the Stannary CooH
on Richard Strode, for Bills introduced by hiTn and oer
tain other members into Parliament, which that coor
had adjudged to be destructive of the privileges of th.^
Cornish tinners ; and declared that all proceedings of ^
civil or criminal nature which should thereafter be brou^*
against him or his associates on account of any Bill intro
duced into Parliament, or any language or argumeft*^
there used, should be utterly void.

Freedom of Debate. — ^The Commons had befo'^
this asserted as against the Crown their right of freedom
of debate. It is not clear when the old feudal practi^
that the king should himself be present at the delibe^
tions of his council or Parliament was given up ; but up^
the division of the assembly into two houses, the king, '
course, could not be present in both ; and the right of tl
Commons to insist on his absence from their debates wJ
admitted by Henry IV., who also promised that the kin
should not receive or give any credence to reports of wh«
passed at those debates. But this promise did not alwa}
in succeeding reigns serve to protect members who ii
curred the displeasure of the Crown by their conduct i
Parliament. Thus, in 31 Hen. 6, Thorp, the speake
was imprisoned ; and although, on the complaint of tli

Parliament 143

Commousy the judges gave an opinion in his favour, hu
was kept in prison, and the Commons at the king's com-
Mud proceeded to choose a new speaker.

4. Meeting of Parliament. — Until the middle of tlie
Mfventeenth century no law existed as to tlie dursition of
a Pariiament, except that it was always dc(!mcd to be din-
wlred on the death of the sovereign. And tlie f requ(»ncy of
its meetings, respecting which the statute-hook did ctmtain
a direction, was in practice regulated less by that than
^y the necessities of the sovereign. But after the twelve
yeaiB (1629-1640) which Charles I. had suffered to elapse
^thout a Parliament, one of the first measures ])as8ed by
the Long Parliament was the Triennial Act, by which
every Parliament was to be ipso fado dissolved at the
expiration of three years from the first day of its session, or
^then sitting, at its first subsequent adjournment or proro-
gation, and a new Parliament was to be elected within
*^ years from the dissolution of the last. And Parlia-
ment was not to be dissolved, nor was either house to be
^joumed without its own consent, within fifty days after
^** Bieeting. This Act, however, which had been infringed
^T the very Parliament which had passed it, was repealed
***^r the Eestoration at the request of Charles II., and
^^^ of his Parliaments sat for seventeen years. Nor was
5^^ aminal assembling of Parliament invariably observed
^ the two later Stuarts.

Xrregular Assemblies. — In the summer of 1640,
"'Uirles L being unwilling, after his unsuccessful experi-
^^Ht of a Parliament in the spring, again to convene the
J^J^resentatives of the Commons, and at the same time
^ing reduced to the greatest pecuniary straits, reverted
^ old feudal precedent, and convened a great council of
l>^erB at York. This assembly voted him £200,000 out of

144 History of the English Institutions

their own resources, but were of course unable to give
him any other assistance.

In the case of the conventions of Lords and Commons,
which met at the Restoration and Revolution, some of the
strict parliamentary forms were wanting. For the peers
had never received the royal summons, and the whole
body had met without royal authority. It was therefore
deemed necessary on both occasions that the assembly
should pass an Act, declaring itself to be a Parliameiit
(12 Cha. 2, c. 1 ; 1 Will. & Mar., c. 1). This, of course,
could not, from a strictly legal point of view, remedy the
defect ; nor on the later occasion was the blot entirely
removed by the fact that the succeeding Parliament, con-
vened by the authority of the sovereigns who owed their
title to the Convention of 1688, solemnly ratified the Acts
which the latter had passed (2 WilL & Mar., c. 1).

Privilege. — ^From the time of Hen. 8 it became the
practice, at the commencement of every new Parliament;
for the speaker of the House of Commons, inunediately
after his election, to claim from the king, on behalf of
members of the house, their ancient privileges of access
to the king^s person, freedom of speech, and freedom from
arrest. The possession of these privileges by both houses?
together with the power of enforcing respect to theix*»
became of great importance in the struggles between Parli^"
ment and the Crown in the seventeenth century. Privilege
from arrest was at that time extended to the servants ^*
members ; and it was held a breach of privilege not onJy
to serve any sort of legal process on members, but also i^
commit any civil injury against them which would pti-*'
them under the necessity of seeking redress at law. Th^
only cases in which it did not apply were those of menci^
hers accused of treason, felony, or refusal to give surety
for the peace. The privilege, in the case of peers, wa^

Parliament 145

)eTpetual ; and in the case of members of the other House,
ixisted during the session, and for a certain time before
Jid after.

Charles L set at defiance the privilege of the Upi)er
louse in 1626, by the imprisonment of Lord Arundel;
nd that of the Lower in the following year, by the
jrest of Sir John Eliot and Sir Dudley Digges for words
poken in debate. There was no such justification for this
)roceeding, as there was for the imprisonment of Sir John
iSiot and others, three years later, when (as was dispas-
ionately resolved by the Commons after the Eestoration)
hey had, in detaining the Speaker in his chair, been guilty
)f a riot, from the consequences of which privilege could
ifford them no protection, inasmuch as it does not extend
to acts, but only to words. But the most flagrant viola-
tion of parliamentary privilege by Charles was his personal
vidt to the House of Commons in 1641, for the purpose
of seizing the five obnoxious members in their places.
This proceeding, though it proved unsuccessful, and though
he apologised for it, was one of the chief causes which
brought about the final alienation between himself and
his Parliament and people.

Privil^e of debate was reasserted after the Eestoration.

In the Act of 1661, which imposed penalties on persons

ttiaking malicious or detrimental allegations respecting the

Wng or the established government, or advancing certain

political opinions, care was taken to introduce a proviso

&at nothing in the Act should extend to deprive either

House of Parliament, or any of their members, of their just

**^cient freedom and privilege of debating any matters or

"^ess propoxmded in Parliament, or touching the repeal

^ alteration of any old, or the preparing of any new

*^, or the redress of any public grievance. And at the

suae time that the Commons came to the resolution

wc msT. K

146 History of tfie English Institutions

respecting Sir John Eliof s case, they laid down that the
Act of 4 Hen. 8 was to be taken as a general law estab-
lishing the privilege of Parliament, and that the judg-
ment given by the King's Bench in 1629 against Sir
John Eliot and others, though right as regarded the
riot, was illegal and erroneous in extending to words
spoken in Parliament ; and the judgment to that extent
was solemnly reversed by the Lords.

Punishment of Members. — ^While the two Houses
claimed peculiar exemptions from the jurisdiction of the
ordinary tribunals, they asserted their own right to punish
the misconduct of their members. Prom the Journals
of the Commons during the reigns of Edw. 6 and
Mary, it appears that on more than one occasion the
Commons, through the Speaker, passed a censure upon
disorderly or indecent behaviour in the House ; and in the
former reign they committed one member to the Tower.
In 1581 they inflicted fine, imprisonment, and expulsion
on one of their members, Arthur Hall, for printing a Hhel
derogatory to them as a part of the Legislature. Li 1677
the Lords committed Lord Shaftesbury and three other
peers for a high contempt in calling in question, during
the course of a debate, the legal continuance of Parlia-
ment after a prorogation of more than twelve months ; and
the judges of the King's Bench refused to grant a haJbean
coi'pus, on the ground that they had no jurisdiction in the
matter, notwithstanding a technical informality on the
face of the committaL

Publication of Debates. — The Long Parliament, in
1641, permitted a publication of its proceedings under ite
special sanction, but prohibited the unauthorised pubHca-
tion of speeches. They even expeUed Sir E. Bering, and
imprisoned him in the Tower, for printing a collection of
his own speeches, and ordered the book to be burnt by

Parliametit 147

common hangman. The prohilntiun to j>uhliHh tht*
debates continued after the Kustorution ; Imt, to ciisiin*
Mcuiate lecords of the businesa done, the House of Coni-
Dioitt, in 1680, directed its "votes and i>r<K'etMl inch's,"
without any leferences to the dolxlt<.*^^, to Im* juintwl uikUt
tile direction of the SjHiaker.

6. Meeting of ParUaznent. — The ])ri]ici})h*. afiirmed
ty the Bill of Eights, " that for redrosse of all f^rievancos,
wd for the amending, strengthening^, an<l prcservcing of
^ lawes, Parlyaments ought to Ixi held fivcjuently," has
"^ ance strictly observed. Owing in i)art to the neces-
sity of passing the annual ^futiny Act, and of obttiining
annually votes of money to meet the largely increased
pblic expenditure, and in part to the closer connection
^Miahed between Parliament and the executive through
^ existence of a responsible ministry, no year has
^pfied since the Revolution without at least one session
w Parliament Nothing was laid down at the Itevolu-
*®^ lespecting the duration of a Parliament ; and pre-
^ondy to 1694, when once elected, it continued in being
^ the demise of the reigning sovereign, unless it was
P'^vioiialy dissolved by the Crown. In that year William
*<*eded to the Triennial Bill, which had once before
PteBed both Houses, but had been lost through the with-
ioldiog of the royal assent ; and the duration of Parlia-
flient was thenceforth limited to three years. The period
Was extended to seven years by the Septennial Act (1 Geo.
ly st 2, c 38), passed in 1715 ; and tliis arrangement has
continued in force ever since, though fi*equent attempts
have been made, both in the last and in the present cen-
tury, to obtain a return to triennial Parliaments. In Anne's
reign, the rule that Parliament was %i^80 facto dissolved by
the death of the king was relaxed, and it was permitted to

148 History of the English Institutions

sit for six montlis afterwards. And this restrictioii was
swept away by the Reform Act of 1867, so that a demise
of the Crown will in future have no effect whatever on
the continuance of the Parliament then in being (30 &
31 Vict, c. 102, s. 51). Apart from the limitation im-
posed by the clause in the BiU of Rights ah'eady referred
to, and by the Septennial Act, the discretion of the Crown
to summon, prorogue, and dissolve Parliament at its plea-
sure remains unrestricted ; and neither House can do moie
than present addresses to the Crown, praying for a di^
solution. The legality of such addresses, and also of
petitions by the people requesting the king to summon
or dissolve Parliament, though not allowed to pass un-
questioned, has been more than once affirmed since the
Revolution.

Privilege. — ^Before the Revolution privilege of Parlia-
ment had been almost invariably asserted on the side of
the rights and liberties of the people, to the establishment
and protection of which its maintenance, and even its
extension, may be said to have been absolutely essentiaL
But when those rights and liberties had become firmly
secured, privilege of Parliament, instead of being a check
on the Crown, became in some cases oppressive to tiie
public at large. Accordingly, during the century which
followed the Revolution the exemption of members from
the jurisdiction of the ordinary tribunals was gradually
restricted, until at length in 1770 an Act was passed which
permitted actions and suits to be commenced and prose-
cuted at all times against members of either House and
their servants, with the sole reservation to members them-
selves of an immunity from arrest or imprisonment. Nor
was it by statute alone that the limits of privilege were
narrowed. Cases of treason, felony, or refusal to give
surety of the peace have been already mentioned as at one

Parliament 149

tiinetheoiilyrecognised exceptionsto the privilege possessed
by membeis of freedom from arrest But upon the publi-
cation by Wilkes, member for Aylesbury, of the North
Briton, !N"o. 45, in 1763, containing a virulent attack
upon the king's speech on the prorogation of Parliament,
the House of Commons resolved " that privilege of Parlia-
ment does not extend to the case of writing and publishing
seditious libels, nor ought to be allowed to obstruct the
ordinary course of law in the speedy and effectual prose-
cution of so heinous and dangerous an offence." And the
Lords agreed to this resolution, although seventeen peers
protestedagainstthe surrenderof the privilege of ParHament
" to serve a particular purpose ex post facto, et pendente
lite in the courts below."

Down to the year 1795 members of both Houses enjoyed
the privilege of sending and receiving post-free an unlimited
number of letters. This privilege, objectionable in itself,
became the subject of great abuse, being fraudulently
employed by persons connected with members to secure
the gratuitous transmission of their own letters. It was
therefore subjected to restrictions by Mr Pitt, and was
wholly abolished in 1839.

Privilege of Debate. — The privilege of freedom of
debate in Parliament was reasserted after the Eevolution
in the Bill of Rights, which laid down " that the freedome
of speech and debates or proceedings in Parlyament ought
not to be impeached or questioned in any court or place
out of Parlyament" Though no attempt was afterwards
made by the Crown to punish members for words spoken
during a debate by imprisonment or legal proceedings, yet,
as will be mentioned later (see ch. ix.), instances occurred
in which George III. visited conduct in Parliament with
substantial marks of his displeasure. The exercise of
freedom of debate was assisted by the right, which both

1 50 History of the English Ifistitutiofis

Houses had possessed from very ancient times, of exe
ing strangers from their debates. The enfoiceiiien
this right, which had previously been very strictly n
tained, was gradually relaxed after the Eevolution, the
it was still occasionally exercised.

Notwithstanding the endeavours of both HouiBeB
ing the first half of the seventeenth century, by
quent resolutions and punishment of offenders, to rest
news-letter writers from giving any report of their
ceedings, the appearance of regular though impe
accounts of the principal debates in one or tw<
the magazines of the year began at the accessioi
Greorge L The initials only of the speakers were gi
and the publication was withheld till after the
sion. And when publication even during the w
was prohibited, and more rigorous measures were ti
by the House of Commons against offenders, the del
were disguised as the proceedings of the Senate of C
Lilliput or of the Political Club. The last attemp
the part of the House of Commons to punish the
lication of its debates was in 1771, and led to a coi
between that House and the Lord Mayor and aldei
of the city of London, who in the Mayor^s Court
declined to treat the printers of the debates as guil1
any offence, and were ultimately committed to the T
by order of the House for the rest of the ses
Though the publication of the debates remains in th
a breach of privilege, it has since proceeded with impui
and it has been found that the misrepresentatio:
speeches, which was so much complained of when
pubHcation of the debates was carried on under dis^
and in constant fear of punishment, and which
advanced as one of the strongest arguments for its
suppression, entirely ceased when all interference

Parliameftt 1 5 1

^^stpaint were abandoned. Reportinj?, however, fitill Cim-
^Ued a matter of difficulty. The taking of notes wjw
P^hibited, and no places being reserved for wportei's,
^ey had to wait sometimes for hours to secure swits in
like limited space allotted to strangers. And the way in
^hich members voted still remaincil, generally sjHwiking,
* secret The Houses themselves recorded merely the*
^^Unbers in the division; and in 1696 the ('omnions
^^clared the printing of the names of the minority a
"''each of privilege destructive of the freedom and liberties
of ^Parliament

O, Presenoe of Strangers. — The power of a single
^©xxiber of either House to require at any time the exclu-
®^xx of strangers still remains, and was exercised in the
^"virer House in 1849, and again in 1870, 1872, and 1873.
■Bix-fc after the destruction of the two houses by fire in 1834,
^^ presence of strangers in the galleries and other parts
01 Ivlie House of Commons not appropriated to members
^'^■^ recognised by the orders of the House, and separate
fS^-^i^ries were assigned in both houses for the accommo-
dation of reporters. Since 1853 strangers have been
V^^mitted to remain in the House of Commons during a
wriaion, and the same liberty has been allowed to them in
^^ Upper House since 1857.

Pablication of Proceedings. — Notwithstanding the
declaration of the Commons in 1696, the lists of the
minority, and latterly of the majority also, were occa-
sionally published in the case of important divisions; but
it was not until 1836 that the practice was begun in the
Lower House of recording the votes of thp members, and
publishing them daily as part of the proceedings of the
House. The daily publication of the division lists of the
House of Lords dates from 1857. Moreover, the Com-

152 History of the English Institutions

mons since 1839, and tlie Lords since 1852, have printed
the names of members present on select committees^ with
their votes upon every point, and the questions addressed
by them to witnesses.

It is characteristic of the altered state of feeling, thai
whereas in the last century the House of Commons were
in conflict with the courts of justice respecting their right
to uphold the secrecy of their proceedings, the last instance
of a similar conflict was owing to their assertion of the
right to publish their proceedings for the benefit of the
nation. In 1835 they directed all their papers to be
publicly sold at a cheap rate, and in the following year
certain reports were by their order published by Messrs
Hansard, containing reflections on a book by an autho*
named Stockdale, who thereupon brought an action fon
libel against the publishers. In this action the judges (^
the Queen's Bench held that the order of the House o
Commons was no justification to Messrs Hansard fo
publishing the Hbel, and notwithstanding a fesoluti^
of the House condemning this decision, Stockdale broug^
another action, and the sherifis proceeded to levy t>t
amount of the damages upon Messrs Hansard. The^
upon the House retaliated by committing Stockdale af^
his attorney and the sheriffs to the custody of th^^
serjeant-at-arms, and an Act of Parliament was passed i*
protect all persons publishing papers by order of eith0
House (3 & 4 Vict., c. 9). That the publication of th<
debates of both Houses, even without their order, if
privileged on the ground of public policy, was laid down
in 1868 by the Court of Queen's Bench, which decided,
in the case of Wascni v. Walter (8 B. & S. 671), that an
action for libel could not be maintained against the pro-
prietor of the " Times " for matter published in the course
of a fair and faithful report of proceedings in Parliament

Parliament 153

\, — In 1812 bankruptcy was made a clw-
^iialification for sitting in the Lower Houwj (schj p. 1C7).
Until 1869, however, members of Iwth Houwh, though
liable to be made bankrupts, continutnl as }Kinkni])ts to
^joy the privilege of Parliament 15ut in that year the
^w Bankruptcy Act abolished all the Ininefit of privilege
0^ Parliament as regarded bankni])tcy in England, and
*unilar provisions as to Ireland were iiiHi?rted in the
Irish Bankruptcy Act of 1872.

11. The House of Loudh.

8. Members. — ^After the constitution of a new House
^ represent the interests of the commons, the Upper House,
*he lineal successor of the Witenagemot and Gn^it Council,
^^^came in process of time confined to the nobility of the
^^id by the gradual elevation to the peerage of some of
''be tenants in capite or lesser barons, and the omission to
^^tttHnon the rest to Parliament The abbots and priors
^h.o held baronies continued to sit until Ht'n. 8's reign,
*^d with the bishops considerably outnumbered the lay
I^is. The latter consisted chiefly of barons hy tenure
^lords who held a barony under the Crown. But there
^^le others who had been summoned to Parliament with-
^^t possessing the qualification of tenure, and who were
l-berefore caDed barons by icrit ; and with respect to these,
^^ Was, in the 14th century, a common practice for the
king to omit to summon them or their descendants to
subsequent Parliaments. At this time, too, knights ban-
nerets were often summoned to the Upper House. In the
early part of Eic. 2's reign cases occur of i)eers being
created by Parliament And the first instance of their
creation by letters patent was in 10 Eic. 2.
Number of Peers. — In the Parliament of 1454, the

1 54 History of tJie English Institutions

last l^fore the civil war, the names of 53 lay peers are
recorded as in attendance. Their numbers were redaced
hy the struggle of the Roses, and Henry VIL summoned
only 29 to his first Parliament This number included
some whose attainder had never been judicially reyened.
The greatest number summoned by Henry VIIL was 51.
]>y the dissolution of the monasteries about 36 abbots and
]>riors were withdrawn from the Upper House, and tbe
spiritual peers were reduced to a minority of the whole
body, and formed about one-third of the house ; their total
number being thenceforward 26. This included the
bishops of the 5 newly created sees, to which, although.
110 baronies were attached to them, the right of a seat in.
the Upper House was annexed.

Chancellor. — Among the incidents connected wiih
tlie office of chief -justiciary, which upon its abolition in
VA\s. Ts reign devolved on the chancellor, "was the poffl-
tion wliich that functionary had held in the council oi
Parliament. The chancellor therefore became, and hae
ever since continued to be, the prolocutor or speaker of
the House of Lords. He may, however, speak and vote
like the other peers, and has no casting vote ; equality of
votes having the effect of negativing the question before
the House.

4. Status of Peers. — About the end of Eliz.'s reign,
the receipt of a writ of summons to the Upper House wM
held to confer an inheritable peerage, descendible, as "wa«
Hutjsequently decided, upon heirs female as well as nude
and conversely in 1626, it was recognised as a fundamental
principle that every peer of full age is entitled to hi)
writ of summons at the beginning of a Parliament, an(
that the House will not proceed with business if any pee
is denied it The number of peers, which Elizabetl

Parliament 155

naintaiiied at a very low figure, was considerably aug-
nented by James L and Charles L, both of whom adopted
ji several cases the practice of selling peerages. The
lumber of temporal peers who sat in the first Parliament
)f James L was 82. That king created 62 new peerages,
md Charles L, 59. But at the same time many old peerages
became extinct^ so that not more than 139 peers received
nimmonses to attend the Parliament of 1661. For the
sune reason, although Charles 11. added 64, and James
DL 8 new peers, the number of temporal peers, exclusive
of minors, Eoman Catholics, and non-jurors, was in 1696
only about 140.

ProtestB and Proxies. — About the time of the
Beformation peers obtained the privilege of recording, if
tbey pleased, in the journals of the House, their dissent
from a measure which they had unsuccessfully opposed.
The right of adding the grounds of their dissent was first
aaaerted towards the middle of the seventeenth century,
la the same century it became a rule that proxies which
had previously been held by persons not members of the
House, should, in the case of a spiritual lord, be entrusted
only to a spiritual lord, and in that of a lay peer, only to
another lay peer ; and the number of proxies to be held
Dy any one peer was Hmited to two. Before this restric-
tion, the Duke of Buckingham had in one Parliament
held 14.

6. Inorease of Peerage. — After the Eevolution the
Wgmentation of the peerage continued with greater rapidity
^hefore. In 1711, Anne created 12 in one batch for
ftfi purpose of obtaining a majority in the House in favour
<rffte Crown. The Act of Union with Scotland in 1706
*lded to the house 16 representative peers for the latter
kingdom, elected at the commencement of every Parlia-

I S6 History of tlie English Institutions

inent by the Scottish peers, who at that time nmnbered
154.2

In the years 1719 and 1720, attempts were made to le-
strict the increase of its members. It was proposed that
the existing number of 178 peerages should not be aug-
mented by more than 6, though new peerages might be
created in lieu of any which became extinct ; and in-
stead of the 16 representative peers, 25 hereditary peers
of Scotland were to have permanent seats. The scheme
met with favour in the House of Lords, but was rejected
by a large majority of the Lower House. In Geo. 3*8
reign, peerages were granted with a profusion previouflly
imparalleled, amounting to no fewer than 388. In this
number, however, are included some promotions of exist-
ing peers to a higher rank in the peerage. The House was
further augmented in 1801 by the 28 representative peers
for Ireland, chosen for life by the nobility of that country.
In order to reduce the excessive number of that nobility,
the Act of Union with Ireland provided that only one new
Irish peerage should be created for every three which should
become extinct, until the reduction of the number to 100,
when it might be maintained at that figure. Irish peers,
not being chosen representatives, were permitted to sit u^
the House of Commons as representatives of any constitu-
ency in Great Britain. The Act of Union with IrelftJi^

2 Soon after the Union the Lords resolved that no Scottish peer, ^^
being admitted to the peerage of Great Britain, obtained a right to 8ij
in Parliament or upon the trial of peers. This resolution, while ^*
lasted, was evaded by creating the eldest sons of Scottish peers p©^
of Great Britain, who having thus obtained seats in the House f*'
Lords did not lose them on succeeding to their Scottish titles. *^
1782, however, the restriction was removed, the judges haNonggiV^
an unanimous opinion that it was not contemplated by the Act ^*
Union. The principle was shortly afterwards established, that •
Scottish peer on being raised to a peerage of Great Britain loses \J^
right to vote for Scotch representative peers, and, if one himself, •*
once ceases to be so.

Parlianunt 157

9^ gave seats in the Upper House to four Irish hi8ho])8.
They were to pass to the different hi8hoi)8 hy rotation
0! sessions, but one was to be always filled by an
wcUrishop.

Creation of Peers. — The circumstances which at-
tended the passing of the Eeform Bill of 1832, proved the
inaportance of the unlimited prerogative of the (Jrown to
cieate new peerages. Sixteen new members wore thus actu-
•Dy added to the Upper House in order to assist the progress
of the Bill And the mere fact that there existed a power
of eflPectually overriding the opposition of the i)eer8 to the
Measure, by the creation of a further number adecjuate
*or the purpose, notwithstanding the extreme repugnanccj
*o the exercise of that power, and the dread of its con-
fluences which the king shared with all who valued our
®<>itetitution, was sufficient to give force to the circular
*6tter of the king, by which, without the knowledge of
*^ nunistry, he prevailed on a number of the opposition
I^®^ to abstain from continuing to resist the measure.

6. Spiritucd Peers. — ^During the reigns of Queen
Victoria and her predecessor, one or two unsuccessful at-
"^mpts have been made to exclude the bishops from the
^ouse of Lords. In 1834, and again in 1836 and the
following year, the House of Commons, by majorities of
^ore than two to one, refused to entertain the question of
^iepriving them of their seats in Parhament. On the
Other hand, upon the creation of the bishopric of Man-
chester in 1847, it was determined that the episcopal
element in the house, although of insignificant proportions
as compared with former times, should not be increased,
but that the bishop last appointed to any of the English
or "Welsh sees, except those of Canterbury, York, London,
Durham, and "Winchester, should wait for his seat in

1 5 8 History of i/ie English hisiitutions

Parliament until the occnrrence of another vacancy. 13
was naturally provided by the Irish Church Act of 185
that, upon the disestablishment of the Church of trelanc
her bishops should cease to have seats in the House oi
Lords.

Life Peerages. — Before the meeting of Ftoliament it
1855, the Crown, on the advice of the ministry, issoec
letters patent to Sir James Parke, who had been a baror
of the Court of Exchequer, giving him a peerage for lift
with the title of Baron Wensleydale, When Parliamenl
met, the House of Lords referred this patent to a com-
niittee of privileges, which, while they did not question
the power of the Crown to confer such a peerage on its
subjects and thereby give them rank and precedence^
reported tliat the life-peerage could neither of itself m«
with the addition of the writ of summons founded upon
it, entitle the grantee to sit and vote in Parliament The
House agreed to the report, and the Crown, in deference
to its decision, issued a new patent conferring on Lord
Wensleydale an hereditary peerage. Shortly afterwards
it bill was brought in to authorise the Crown to grant
life-peerages to two judges of at least five years' standing,
who should sit with the Lord Chancellor as judges of
appeal and deputy speakers ; but, after passing the House
of Lords, it was lost in the Commona

Proxies. — The practice of giving proxies having been
found to diminish the personal attendance of peers in
Parliament, was discontinued by a resolution of the House
in 1868.

Number of Peers. — The total number of peers, lay
and spiritual, having seats in the House at the close oi
1872, was 48 L The number of Scotch peers which, at
the time of the Union, was 154, has now by extinction
and absorption into the peerage of the United Kingdom,

Parliament 1 59

dwindled down to one-half of that number ; and as no nuw
infi]iil)ei8 of the oider can be created, the whole body may
possilly at some future period altof?ether disappear, Iwdn^
nicorporated into the national nobility.

IIL The House of Commons.

•

3. Barly Composition. — The rej^ilar and unvarj'in^'

atlien<Jance in Parliament of representjitives from both

*5<"*iitie8 and boroughs dates from 1295. In that year

™® number of knights who sat was 74, and the nunibi^r

of burgesses 200. The knights seem to have been (jrigin-

^y chosen only by the military tenants In cajn'fe, but

** ^lleir election took place in the county court, in which

"^ freeholders had a voice, it proT)ably soon fell into the

'^^^ds of the whole body of freeholders. The de])utic*s

^^ a borough were probably elected originally by all

"^^ turgesses or resident householders, but when a poorer

^^***B of householders sprang up, unable to dischar^'(»

^ duties attaching to full citizenship, the francluse

*^^^iaine limited in some towns to the inhabitants who

P^d taxes under the name of scot and lot, and in others

^ those who held houses or land in the town by hurgruje

^Hure.

From the fact that the rates of taxation for the counties
^^d boroughs were in Edw. Ts reign often different, it
^y be inferred that the knights and burgesses in many
biases voted separately. But in Edw. 2's reign they were
Permanently united together in one House, although an
instance occurs so late as 6 Edw. 3 of the knights taxing
themselves at a less rate than the burgesses.

In the reign of Edw. 3 and the three foUomng reigns,
about 180 burgesses and 74 knights sat in the Lower House.
In 46 Edw. 3 complaints were made of the number of
lawyers returned as knights for counties, and an ordinance

l6o History of tJu English Institutions

was passed rendering them ineligible as such. ThL
orrlinance, after having been long disr^aided, ^ras foimallv
repealed in 1871.

Imperfect Representation. — ^The repreasentation ic
the Lower House was in early times exceedingly imperfect.
Xot only was the attendance of the elected members Yor
defective, but in the holding of the elections themselves
great irregularity prevailed. The Crown exercised the
right of from time to time sunmioning deputies from new
boroughs, and omitting other boroughs which had been
previously represented. Moreover, the obligation to p«j"
a salary to their representatives, which amounted to 4&.
fK;r diem for a knight and 2s. for a burgess, caused consider-
able gajis in the representation ; for the sherifis weie
prevailed upon by some boroughs to pass them over on
account of their poverty, while others on the same gromid!
obtained express dispensation from sending deputies.
Others again, when the writ for the election was issued,
to them, refused to comply with it Sometimes, too,
the sheriffs fraudulently omitted to return deputies fcff
Ixjroughs within their bailiwick. And in both counties and
>K»rouglis they frequently, at the instance of the Crown, or
for their own private interests, exercised undue influence
over the elections. In general, the king and his privy
council had at this time exclusive jurisdiction over dis-
puted olfactions. But in the reigns of Hen. 4 and Hen. 6
statutes were passed punishing sheriff for maVing false
returns. And st 7 Hen. 4, c. 15, alluding to the mal-
practice, enacts that the elections of knights shall be
inarle in the full County Court by all there present freely
and indifTerently, notwithstanding any request or com-
mandment to the contrary. This Act probably did not
crr^ate any new privilege, but merely declared the existing
right of all the freeholders to take part in the election.

Parliamcttt i6i

^ 1429, however, it was found neccfwary to curtail
^^^ right, owing to the riots that took \Ai\v\i at tin;
elections; and the possession of a freehold of at least 408.
clear annual value was thenceforth iixed as a qualificyitinu
^^ a county vote. St 8 Hon. C, c 7, hy wliich this
^''^ effected, also repeated, as to kni^dits of the shire, tlie.
qualification of residence which liad been ruquiriMl hy an
•^t of 1 Hen. 5, for the eli^hility of r(?i)n'8(jntiitiv(;s of
^th. counties and towns. The election of dt'puties for
citieB and boroughs gradually fell into the. liands of the
°^*'T>orations. At first they obttiincMl the eonciirrenci; of
*"® whole community in the choice, but ultiniutely they
■Quired exclusive control over it.

4. Members. — ^The first instjinoe of an heir to the
Parage sitting in the Lower House wjis in 1549, wlien,
^on the Earl of Bedford succeedinj^ Ui th(». piuiKige, it was
^^ered that his son, who was then a menilxir, should
^^o^Htinue in the Housa The second occurred in ir)7;"3,
^ favour of the son of the individuid in whoso casei the
P^^iiit had been first decided. Since that time it has
^^^Come a usual practice.

The payment of members ])y their constituencies, and
^le necessity of their being resident in tlie counties (»r
V)wns which they represented, fell into disuse about the
time of Elizabeth ; and it was in lier reign thtit the first
stance occurred of punishment for bribery. About the
%ame time the House successfully asserted its right to
determine all cases of contested elections. It is true that
in the following reign the royal proclamation for the
meeting of Parliament in 1G04 arroj^atod a control over
the elections ; but the ctise of Fortescue and Goodwin's
election in that year was the List attempt to dispute the
exclusive jurisdiction of the House in the matter. The

ENG. UiST. V.

1 62 History of ttie English Institutions

right of the House to expel one of its mombers, which
was asserted in the case of Arthur Hall in 1581 (see
p. 146), was frequently exercised by the Long Parliar
ment.

New Boroughs. — The control exercised by the Crown
over the constitution of the Lower House by the arbitraiy
creation of new parliamentary boroughs was continaed
by the successors of Henry VIIL Under Edward VL the
privilege of returning members was granted to fourteen
additional towns, and restored to ten who had lost it by
disuse. Mary added twenty-one, Elizabeth sixty-two, and
flames L twenty-seven new members to the Lower Housa
Many of the so-called decayed boroughs, the scandal ofj
which was one of the causes of the Reform Act of 1832^
were thus created, when their condition was no bette*:
than it was three centuries later. Some of them received Ite
franchise at the same time as their charters of incorpoia^
tion, in the hope, which proved illusory, that prosperily
would follow. To others it was granted merely on accoun.'*
of their being part of the ancient demesne of the Crown.,
or subject to its influence. The practice was especially
carried out in Cornwall, where the Stannary Court was o-
ready engine of royal coercion. Thus, between the acces-
sion of Edward YI. and the death of Elizabeth the number
of Cornish boroughs returning members was increased
from five to twenty-one. In 1563 eight new boroughs at
once were created by charter, a measure which was
acquiesced in by the House of Commons, though not
without question. In the reign of Ja. 1 the Commons
resolved that every town which had at any time re-
turned members to Parliament was entitled to a writ as
a matter of course. And in accordance with this reso-
lution, the privilege was, upon their petition, restored
to fifteen boroughs during that and the following reign.

Parliament 163

The Connty Palatine and city of Durham were first
admitted to the franchise in 1673.

6. Members. — ^After the Revolution the Crown and
its ministers being unable any longer to coerce the House
of Commons, endeavoured to secure a majority within its
walls by a large distribution of places, pensions, and titles
of honour. With the prerogative of the Crown in grant-
ing the last of these attractions the House never took upon
itself to interfere, and thwarted an attempt of the Upper
House to do so. But when William III. begim to multi-
ply offices for the purpose of controlling Parliament, the
Lower House in 1G93 passed a Bill to proliibit all mem-
bers thereafter elected from accepting any office under the
Crown. This Bill having been thrown out by the Lords,
a similar measure was introduced in the following year
and passed both Houses, but was lost from a refusal of the
royal assent The Act of Settlement in 1700 enacted
that, after the accession of the House of Hanover, no
person holding an office or place of profit under the king,
OP receiving a pension from the Crown, should be able to
sit in the House of Commons. This enactment, if carrieil
out, would have brought Parliament into hopeless conflict
with the executive, but it was repealed in Anue*s reign
before it came into operation, and the Act for the Security
of the CroMH and Succession (6 Ann. c. 41), contained
clauses instead to incapacitate from sitting in the House
the holders of any new office created after the 25th
October 1705, as well as persons in receipt of a pension
from the Crown, during pleasure, and to oblige members
to vacate their seats on accepting any of the existing
offices, though they were allowed to be immediately re-
elected. Even in the preceding reign certain Gove-Yw-
ment officials, such as the Commissioncxa oi SIvuyv^^ «xvv\.

1 64 History of tJie Englisk Itistitutions

Excise, had been expressly excluded from the House^ an<
to these others were now added. But owing to the lesei
ration in favour of old offices the House was still liall
to be swamjie^l with placemen, and preriouslT to 1742
find upwards of 200 officials actually holding seats. In
that year, however, a short Act was passed, which exdnded
at one sweep a vast number of commissioneis and deiks
in public offices, and the number was forty years later
still further reduced, when Lord Sockingham's Civil List
Act suppressed many superfluous offices which had been
usually held by members. Further special disqualifica-
tions of particular offices have since been added. The
common law judges had been from the earliest times in-
capable of sitting in the Lower House. This incapacity
was from time to time extended bv statute to the Scotch
and Irish judges, and to the holders of newly created
judicial offices in England ; so that the only judge now
capable of sitting in the House is the blaster of the BoDs.
An exception from disqualification has always been made
in favour of the holders of naval and military commis-
sions; and officers of the militia, yeomanry, and volunteers,
enjoy the same privilege of sitting.

The provision in 6 Ann. c. 41, with reference to persons
receiving pensions from the Crown, which was a few years
later extended to pensions for a limited term of years,
proved ineffectual to restrain the imdue influence thus
obtained by the Crown, owing to the practice adopted by
ministers of granting secret pensions out of the large sums
annually voted by Parliament as secret service money, to
Ix; applied for purposes which it was against the interests
of the nation to disclose. This abuse was at length
checked by Lord Rockingham's Act, already alluded to.
whicli restricted the grants of secret service money to a
small amount, and contained stringent provisions to prevent

Parliament 165

its being applied in pensions (22 Geo. 3, c. 82). Moreover,
the purchase of the support of members by entrusting them
with lucrative Government contracts extensively prevailed,
until an Act of the same year prohibited contractors for
the public service from sitting in the House (22 Geo. 3,
c 45).

Kor did the ministers of the Crown content themselves
with obtaimiig by these means the general support of
members of the House. They did not scruple to offer
special sums of money for votes on particular occasions
when an important measure was at stake. This bribery
of members was commenced in Cha. 2's reign, and was
largely resorted to by the ministers of WilL 3. It was
partly with a view to secure the return of members
who would be free from temptation of this kind, and
partly in order to exclude rich commercial men, that a
measure passed both Houses in 1696, and, after failing
to secure William's assent, became law in the following
reign, which imposed as a qualification of membership the
receipt of an annual income from land to the amount of
£300 in case of a burgess, and X 6 00 in case of a knight .
of the shire. But even persons holding this amount of
property were found venal, and bribery of members was
reduced to an organised system under the administration
of Sir Robert Walpole, and was continued by his suc-
cessors. The dispensing of the bribes was popularly
known as the " management of the House of Commons "
and was entrusted to an experienced ministerial agent.
Little or no secret was made of the practice, and correct
reports were not unfrequently circulated of the sum which
a division of importance had cost the Government.
Besides the payment of actual simis, bribery sometimes
took the form of a distribution of shares in public loans
and lotteries under ^eir market value. 1\) \a «»«A 'Oc^

i

1 66 History of tJte English Institutiofis

by this latter means the country suatainecl a loss o.^—^}
£385,000 in 1763, and of as much as £900,000 in 1781.
The direct bribery of members of Parliament appears
have ceased about the close of the American war. It
at any rate certain that Mr Pitt, though he employed it^' *
to obtain the consent of the members of the Irish Parlia — ■ —
ment to the Act of Union, never resorted to it in the
English House of Commons, and no minister has since
ventured to do so. Mr Pitt, moreover, in his first year of
office began the practice of receiving sealed tenders for the
public loans, which enabled him to accept the most favour-
able terms offered ; and he distributed the lottery tickets
among the subscribers to the loan in proportion to the
sums which they lent. The change thus effected was of
hardly less importance than Lord Eockingham's Contractois'
Act in restraining the indirect bribery of members of
Parliament by the Government

Exclusion. — In 1714 Sir Eichard Steele was expelled
from the House for writing a pamphlet called the Crims,
reflecting on the ministry. Fifty years later the Com-
mons expelled Wilkes for publishing the North Briton^
No. 45 (see p. 149); and when in 1768 he was retumed
for Middlesex to a new Parliament, he was again expelled.
Being immediately re-elected, he suffered a third expulsion,
accompanied by a resolution of the House, that his expul-
sion rendered him incapable of being elected a member to
serve during the continuance of that Parliament^ — an ex-
tension of their right of exclusion which was of very
doubtful legality. In defiance of the House he was again
re-elected, but the election was of course declared void;
and upon a new election, when the constituency persLsted
in placing him at the head of the poll, the House gave the
seat to the candidate who obtained the next largest num-
ber of votes. The contest was thus for a time ended, but

Parliament 167

Wilkes waa letumed in a subsequent Parliament, and at
^eixgth obtained from the House a resolution that all the
Proceedings connected with the Middlesex election should
oe expunged from its records.

Insolvency was first recognised as a disi^ualification for
a seat in the House of Commons in 1812, when it was
QUacted that upon the bankruptcy of any member he
should be debarred from sitting and voting for twelve
months ; and if at the end of that time the bankruptcy
^WBs not annulled, or his debts paid in full, his seat should
be deemed vacant, and be filled up by a new election.

Elections. — ^The Bill of Eights affirmed that elections
of members of Parliament ought to be free. But after
the Bevolution the independence of the elections, like
that of the House itself, though in no risk of forcible
infringement, was liable to a danger of a different kind.
It was natural that members who took bribes themselves
should not scruple to employ the same means in order to
retain a position which they could turn to personal profit.
Bribery of electors like that of members existed in
the reign of Cha. 2, and increased after the Eevolution.
At the beginning of Geo. 2*s reign its prevalence had
excited such alarm, as to lead in 1729 to an Act which
inflicted severe penalties on persons receiving bribes. But
notwithstanding this measure, and others on the same
subject, the practice continued to increase. The validity
of a disputed election was at this time determined by the
whole House, and it was found almost impossible to obtain
a vote adverse to the election of a member of the dominant
party. To remedy this scandal, Mr Grenville in 1770
obtained the passing of an Act, which transferred the
jurisdiction over all cases of controverted elections to a
sworn committee of thirteen members.

Acts of Union. — ^The Act of Union with Scotland

1 68 History of the English Institutions

(6 Ann., c. 11) provided that 45 representatives of that
kingdom should sit in the Lower House in the Parliament
of Great Britain, of whom 30 should he chosen hy the
shires, and 15 hy the royal hurghs. And hy the Act of
Union with Ireland in 1800 (39 & 40 Geo. 3, c. 67), the
numher of Irish memhers in the House of Commons of
the United Kingdom was fixed at 100, being two for each
county, two for each of the cities of Dublin and Cork,
one for Trinity College, and one for each of the 31 prin-
cipal boroughs.

Representation. — ^The three chief defects in the
representation of the people in the House of Commons
arose — (i.) from the number of parliamentary boroughs
which had either been originally rotten, or eke had
decayed through migration of the population ; (iL) from
the fact that the elections had in nearly all the boroughs
fallen into the hands of the corporation; and (iiL) from
the growth of wealthy and populous commercial toTms^
which possessed no right of sending members to Parlia-
ment. The existence of these defects led Lord Chatham
to advocate the reform of the House of Commons as eady
as 1766. The subject was taken up by his son, after
having been agitated in the interval by Wilkes and others ;
but the king being averse to it, Mr Pitt did not press the
matter, and on the outbreak of the French Revolution all
idea of it was abandoned. After the close of the war in
1815, proposals for reform were again started, and were
brought almost annually before Parhament. Some of
these were of a very advanced character, extending to
manhood suffrage, and even to the female franchise)
together with equal electoral districts, vote by ballot, and
annual parliaments. Towards the close of Geo. 48
reign the agitation for reform received an impetus from
the disclosure of corrupt practices of a flagrant character

Parliament 169

•

^ ^ome of the close corporations and rotten l>orough8.

"^^ accession of WilL 4 was soon followed l)y tlie advent

^ power of Lord Grey and a Whig ministry, by whom a

^otm hill was introduced early in 1831. After carrying

^^ second reading in the Commons hy a majority of one

^ a house of C08, they were beaten upon the Bill in com-

^ttee, and dissolved Parliament In the new House of

Commons they had a decisive majority, and passed the

fin in the month of September. But it wjis thrown out by

the Lords in the following month, upon which Parliament

^vas prorogued till December, and when it met again the

Bill was brought in anew with imi)rovements founded on

the recent census and on statistics obtained in the interval.

This Bill having passed the Commons in March, was read

a second time in the Upper House by a small majority.

When, however, the Bill went into committee, the ministry

met with an adverse vote, and resigned ; but it being

impossible to form any other administration, they were

speedily recalled, and the Eef orm Bill passed both Houses,

and became law on the 7th June 1832.

By its provisions 56 rotten boroughs, with less than
2000 inhabitants, and returning 111 members, were swept
away. Thirty boroughs, having an aggregate of less than
4000 inhabitants, lost each a member, and Weymouth and
Melcombe Regis were in future to return two between them
instead of four. Thus 143 seats were left to be appor-
tioned between the different towns and counties in the
United Kingdom requiring additional representation. The
right of returning two members was granted to 22 large
towns, including metropolitan districts, and that of return-
ing one to 21 more ; and at the same time provision was
made for altering the boundaries of the parliamentary
boroughs. The number of county members was increased
from 94 to 159, the larger counties being divided into

1 70 History of tJu English Institutiotis

dintinct representative divisions, and a third member
l)eing given Vi others. The occupation, of a hoiue o^
Uie yc^irly value of £10 or upwards was fixed as the qnali-
lif^ation for the franchise in boroughs, the rights of freemfSi
of coqxiHite towns being alone reserved. The coimtycon-
stituency was enlarged by the admission of persons holding
cr>pyhol(l or leasehold land of a certain value. And a&
end(5avour was made to lessen the expenses of electioiiB bf
t}ie nigistration of electors, the division of countieB and
bonjughs into convenient polling districts, and a ledoctioii
of tlie days of polling (2 & 3 WilL 4, c 45).

In the same session a Scotch Eeform Bill was passed,
by which the number of Scotch representatives "WM
iiicnjased frc^m 45 to 53, 30 of whom were given to
counties, and 23 to cities and boroughs. The coimiy
franchise was extended to owners of property of XIO a
year, and to certain classes of leaseholders, and the biii|^
franchiwj to all £10 householders (2 & 3 WilL 4, c 66).

1'he disfranchisement of rotten boroughs in Ireland
had Ixion eflected at the Union, but a Eeform Act "was
l)jws(id for tliat country, which took away the right of elec-
tion from the corporations, and vested it in the £10 honfle-
hold(;rH, and made large additions to the county consti-
tueiKues. The number of Irish members was at the same
time incTeiised from 100 to 105 (2 & 3 WilL 4, c. 88).

The eilect of the tliree Acts was thus to leave the total
number of members at its foiiuer figure, C58.

6. Members. — As the result of the measures already
noticed for restricting the tenure of offices and pensions
])y members, there were in the reformed House of Com-
mons of 1833 only 60 members who held civil offices and
l)eiisions from the Crown. The requirement of 6 Ann. c
41, as to vacation of seat and re-election on the accept-

Parliament 171

Y office under the Crown, has been dispensed with
fonn Acts of 1867-^ in the case of the transfer
)6r of the ministry from one office to another.
opezty qualification of members, after Ixiing
the commencement of Queen Victoria's reign,
ither abolished in 1858.

lion. — The right of the House to expel and
8 members has more than once been the subject
ion in the reformed Parliament In 1849, when
Brien, M.P. had been adjudged guilty of high
le House ordered the Speaker to cause a writ to
for a new election to supply his place; and in
m (^Donovan Rossa was returned for Tipperary,
ler sentence of penal servitude for life for treor
', they prefaced a similar order with a resolution
a, by his conviction and sentence, had become
aued incapable of being elected or returned a
»f the House. In the same year, any doubts
^ht have existed as to the legality of this pro-
ere set at rest by a provision in the Act which
forfeiture for treason and felony, that persons
of those offences should, while undergoing
nt, be incapable of sitting or voting as a member
House, or of exercising any parliamentary or
franchise.

sentation. — In 1850 the borough franchise in
as extended to £8 householders, and a reduction
) in the qualifications required for the county
in that country. During the years 1850-60
easures for further reform in England were un-
ly proposed. Lord Palmerston, who became
iiister in 1859, was disinclined to move in the
id after the abandonment of the Bill of 1860,
o progress during the remainder of his tenure

172 History of tlie English Institutions

of office, which lasted till his death in October 186crzi
Meantime the demand for the lowering of the franchi^*
and a redistribution of seats had been strengthened
the vast increase of the population, and the growth
new towns of large dimensions not possessing the franchise ^
and in the session after Lord Palmerston's death, Earl
Eussell*s Government brought in a Reform Bill, upon the
details of which they were defeated, and resigned office
in consequence. In the following year, 1867, Loid
Derby's Conservative ministry, by the management of
Mr Disraeli in the House of Commons, and with the help
of their opponents, who were in a large majority in that
House, succeeded in carrying a comprehensive measme of
reform in England, which they supplemented in the follow-
ing year by similar Acts for Scotland and Ireland (30 & 31 \
Vict c. 102; 31 & 32 Vict. c. 48; 31 & 32 Vict c 49). \

By these Acts the borough franchise was given in Eng-
land and Scotland to every man of fuU age after a lefflr
dence of twelve months within the borough, either aa a
householder paying the poor-rate, or as a lodger in lodgings
which would let unfurnished for at least £10 a yeat
A similar franchise was accorded to Ireland, but instead
of the household franchise, votes in the Irish boroughs
wore given to occupiers of houses or land within them rated
at a net annual value of not less than £A. The county
franchise in Great Britain was at the same time extended
to all persons possessed of land in the county of the dear
yearly value of £5 and upwards, except persons holding
under short leases, and to aU owners or tenants paying the
poor-rate, and occupying land in the county of the rate-
able value of at least £12 in England, and £14 in Scot-
land. As the qualifications for the county franchise in
Ireland had been already reduced by the Act of 1850 to
almost exactly these figures, no alteration of it was con-

Parliament 173

B^^^^ necessary. Nor as regards IruLind was any
^^^Qiige made in the 9liares of the representjition allotted
to the boroughs and counties. In Great liritiiiii, however,
and more particularly in England, these un(h;rwent cmi-
^Klemble modification. Several boroughs were dtqirived
<tf one of their members ; and on the otiier hand, new
IiQRnighs were created, old boroughs received a third
l&ember, and large and populous counties, which had pre-
viously formed one constituency, were divided int<j dis-
tricts with a distinct representation for each district.

At the same time a totidly new principle, that of tlie
Representation of minorities, was in a very imperfect and
partial manner introduced into our representiitive system,
by the provision tliat at contested elections in a con-
stituency returning three members, no person should vote
for more than two candidates, nor in the city of London,
which returns four members, for more tlian three candi-
dates. The effects of this is, that in these constituencies
at a general election the party who are in the minority
can usually secure one of the seats ; but in the rest of the
country the elections are left as before, altogether in the
hands of the majorities of the constituencies ; luid even in
the favoured places themselves the minority may lose
their representation if their candidate hai)i)ens to die or
vacate his seat during the continuance of the Parliament,
since in the election to sui)ply tlie vacancy the majority
can assert their numerical sui)eriority without restraint.
This, however, is of course also the case where (Sections are
conducted with the cumulative vote (see p. 123).

The total number of members was left michanged by
the Eeform Acts of 1867-8; but seven seats were trans-
ferred from English to Scotch constituencies, so that at
present England and Wales return 493, Scotland GO, and
Ireland 105 members.

1 74 History of tJu English Institutions

The Reform Act of 1832 has been followed at inl
by measures for simplifying and improving the n^istir^^-
tion of electors, for increasing the number of polHcB-^
places, and for reducing the time of polling to one day m^
counties and boroughs, and to five days in the Univeisitifis^
The proceedings at University elections were further:*
alter(:;d in 1 86 1 , by the power then given to persons entitle*^
to take part in them, to record their votes by votii
papers, instead of coming up from all parts of the
dom to exercise the franchise.

Many measures have been taken during the last fort^5
years with a view to the suppression of bribery at
mentary elections, but hitherto with only partial
iSeveral boroughs have been disfranchised (m account os^ ^^
its prevalence in them ; and in 1854 an Act was
limit^jd in its duration to one year, but annually rei
ever since, which made the offer or acceptance of a
a misdemeanour punishable with fine, imprisonment,
forfeiture of franchise ; and prohibited treating, cockades,
colours and music at elections. And since experience proved
that the committees before whom electionswere impugned (m
the ground of corruption, were apt to look on the case "with
too lenient eyes, the House in 1868 surrendered in favour
of the courts of law its long-cherished privil^e of ex-
clusive jurisdiction in cases of controverted elections.
The present mode of questioning the validity of an elec-
tion is to present a petition against it, which is tried before
one of the judges of the superior Courts of common kw.
The judge certifies the result of the trial to the Speaker,
and at the same time reports any corrupt practices which
have been proved before him, and the House takes the
requisite action on his certificate and report

The existence of bribery and intimidation was one of
the main reasons adduced for the Ballot Act of 1872.

The Kin^s Council 175

^proposal to substitute voting Ly lKiIl(»t for the old

^J^gJiah method of open voting was niadc^ in almost <*v<*n*

*88i(m after 1832, and was actually carriiMl in tln^ H»juse

of Commons in 1848. But it subwiiuently ffll into dis-

«vour, and its chance of Ixjcoming law was vfry small

^Drtfl Mp Gladstone's Government took it up in 1871.

Bie Ballot Bill of that year was thrown out by the

Lords, hut in the following session an Act was jiasscd

ftlwlishing the open nomination of (;an<Iidat(*s on tin*

ATistings, and imposing a secret Killot as tin* method of

poIEng at all parliamentary and municnpal elections,

except in the Universities (35 «fe 30 Vicrt c. 33). The

-Act was to continue in force till the 31st l)ecem])er 1880.

CHAPTER VI.

THE KING'S COUNCIL.

1. Pre-Nonuan Period, — It is almost impossible to
^^^nceive of any monarch, however great his power and
ijitellect, being able to exercise dominion over a consider-
able community without receiving continutd advice and
^aaistauce from at least a few of liis subjects. Accord-
ingly, we find that the early English kings, besides
consulting the Witenagemot, kept certain counsellors per-
manently attached to their court for the purpose of dis-
charging the functions of government. They had their
fftallere or constable, their dish-thegn, their l)ower-thegn
or chamberlain, and their chancellor — officers originally
charged, as their names imply, with menial duties in the
palace, but in process of time entrusted with the military,
financial, and general administration of the realm.

2. Concilium Ordinarium. — It was shown in the
last chapter, how, at the Conquest, the Witenagemot was

I ^6 History of tJie English histitutions

superseded by a feudal assembly — the council of the
barons or vassals. This, according to the feudal theoi^'
was the proper council from which the Inng should see ~M^-
and receive advice, and ought to have been assemble <:3
by him thrice in the year. But attendance at tb.^
king's court involved on the part of its members, who
were scattered throughout the country, an intermptioxi
of their domestic and local affairs, and the performance of
an arduous journey ; so that they were probably by no
means dissatisfied with the fact, that the king, instead cȣ
convening the whole body, resorted to the advice of ^^
select number of the members of the Great Council, coi».—
sisting of those nobles, both lay and ecclesiastical, wh^^
held permanent offices of state, and were therefore mor^
or less constantly about the king's person, and of a fe\i==*'

others who were specially siunmoned by him. Thi ■

smaller body was called the Concilium Ordinarium,
Permanent Council Like the Great Council it
before it parted with its judicial functions, and even
some time afterwards, called the A^da Eegia or Curi
Regis, and was presided over by the king, or in
absence by the chief justiciary (see p. 137). Its regula^^
members under the early ^N'orman kings were the chieft^
justiciary, lord chancellor, lord treasurer, lord steward^^
chamberlain, earl marshal, and constabla But besid
these, there were sometimes present in it the comptroller
of the household, the chancellor of the exchequer, the
judges, the king's serjeant, and other officials. While its
members in their different official capacities attended to
different branches of the royal and public business — ^the
justiciary, for instance, to judicial matters, the chancellor
to the king's grants and appointments, the constable and
marshal to military and foreign affairs, the treasurer to
the public finance, and the steward and chamberlain to

Tlie Kings Council 177

tlie management of the king's palace and private 2)r()p(frty

"Hill in their position of counsellors united in (loli1x.>rat-

ing on pubKc ofiGedrs, and took part in the adininistnition

of fliem. At first the Concilium Ordinnrimn wan merely

s sort of standing committee of the Cireat Council. It

idd its meetings at the times of the year wlicn that IkmIv

OQghty strictly speaking, to have Ijeen summoned; and

i^henever the latter was convened, the Onlinary Council sat

^th it, and became mer^^ed for the time l)i'iii^ in the

ittger assembly. Gradually, however, just as it became

^epaiated from its oflFshoots, the law coTirts, on the one

**ftiid (see below, cIl viiL), so on the other it In'came a

defined institution distinct from the (Jreat Council or

^^arliament ; and it eventually met at all times of the year

^<5coiding to the exigencies of state affairs. Yet even so

"^^te as Hen. 4*s reign, we find a resolution that nothing

^Ixonld be transacted in the council out of term-time, ex-

^^J)t matters which would not admit of delay.

3. Origin of Privy Council. — At first th& only
"enue of admission to the council which was open to
^^mmoners lay through the Church; but in Hen. 4*s
sign, in 1404, we find, as the members of his council.
*^tlree bishops, niue peers, and seven commoners, of whom
^Xi were knights — making nineteen in alL The coun-
cillors at this time held their ofl&ce for a year only; but
^ot long afterwards they were appointed for life, though
^\ey continued removable at the king's pleasure, or at
their own wish. During the minority of Henry VI.
they were nominated by Parliament, but ordinarily, like
all other ofl&cers of state, they held their appointments
from the Crown. They, or at least those of them who
attended regularly, were bound by a special oath to ad-
vise the king according to the best of their ability, to

BNG. INST. IJL

1 78 History of t/ie English htstitutions

keep the king's counsel secret, and to assist in the exei
tion of what should be resolved on, and were paid salar
of considerable amount About the time of Hen, 6
distinct line of demarcation was drawn between t
sworn and paid counsellors and the occasional memhi
of the council, tlie former being constituted into the Pri'
Council, and monopohsing all the administrative and ea
cutive duties.

4. The Council under the Tudors and Stuart

— The distinction between privy councillors and ordina
councillors is met with in Hen, 8's reign, and it is 0:
which, in fact, exists to the present day; for although 1
persons appointed to the council are sworn and considen
as privy councillors, they do not attend the council boa
unless specially summoned. The ordinary councillors
Hen. 8's time and subsequent reigns were qualified to taJ
part in the judicial business of the council in its con
of Star Chamber, but not in its administrative function
In Hen. 8's reign increased importance was given to tl
office of president of the council, and an Act was passi
to fix the order of precedence in Parhament, and in tl
council, of the person who held this position, and of tl
other principal officers of state (31 Hen, 8, c. 10). I
Edw. 6's reign the council consisted of 40 persons, (
whom 22 were commoners, and was divided into fii
commissions or committees, to which difterent judid
and administrative functions were assigned. Under th
arrangement the committee " for the state," composed '
one-half of the whole number, was in fact the Pri^
Council, while those who were not upon it were in tl
position of ordinary councillors. The numerical pi
portion and influence of commoners in the council w
maintained by Elizabeth, but declined in favour of tl

The King's Council 1 79

Jwbility in the reigns of the first two Stuarts. Aft<T tli<*
^festoration, when the Star CluimlKjr, and witli it the
judicial functions of the Privy Council, IkuI 1mm*ii alH>
fished, the reason for the existence of onliiuiry fis distinct
from privy councillors no longer existcni Fn » n 1 1 hat t i nn *,
tiierefore, all the councillors were swoni as privy coun-
cillors; hut, while Charies IL largely increased their
number, he introduced the practice of summoning only a
Imiited numher of them to delilxjratc on state ailairs.
Thus was originated the Cahinet, of which more will be
inch. ix.

5. The Council since the Revolution. — Although,

•

^J^ the Revolution, the whole administrative fuixitions
^^ the council have been monopolised by the Cabinet,
®e council has continued to exist as the le^allv recrojniised
"^y to which those functions are entnisted, and of which
•"^ Cabinet is, in the eye of the law, merely a committee,
^^ the committee "for the state" of E<lw. C's reign.
^Ua it was against a foreigner, even though naturalised,
woming a privy councillor, and not merely against his
°^tig a member of the Cabinet, that a clause of the Act
^ Settlement of 1700 was directed; it was a privy coun-
ter, an assault upon whom when in discharge of his
duties was made felony, without benefit of clergy, in Queen
Anne's reign ; and it was the whole Privy Council, and
^W)t the Cabinet only, which, by a statute of the same reign,
^ empowered to continue and act for six months after
a demise of the sovereign, having previously been ipso
facto dissolved upon that event.

6. Committees of the Council. — The Cabinet, as
at present constituted, usually consists of the 15 leading
members of the ministry for the time being. There ate,

1 80 History of the English Institutions

besides, other committees of the Privy Council for d
with special subjects. After the suppression, in 17
the Commissioners of Trade and Plantations, the
vision of mercantile and colonial affairs, formerly enl
to them, was transferred to a committee of the council
the Board of Trade. In 1833, when appellate j
powers of large extent were restored to the coimcU,
provided that they should be exercised by a con]
called the Judicial Committee of the Privy C
And, early in Queen Victoria's reign, when the p
had been commenced of making annual parliam
grants for educational purposes, a " Committee of C
on Education" was appointed by the Crown to supei
the distribution of the money voted. A few years
wards, the Poor Law Commissioners, appointed
preceding reign, were superseded by the Poor Law
of which four cabinet ministers were to be ex
members. This Board, however, was not obliged
exclusively composed of privy councillors; but ii
it was in turn abolished, and its functions, as weU
powers previously vested in the Privy Council at
the Board of Trade, and the Home Secretary, in refer
pubKc health and other matters, were transferred to
committee of the council, consisting of cabinet mi
and styled " The Local Government Board." All
councillors, whether at the time serving on any
committees and boards or not, are distinguished
title of " Eight Honourable." The fact that thej
this title in common with the peers, the members
Upper House, which, as has been stated, is the ;
representative of the old Great Council, is a ves
the close connection which formerly existed betwe<
body and the king's smaller council

PART III.
Central dobernmeut.

CHAPTER VI L

LEGISLATION.

!• Pre-Norman Legislation. — Tn the Enj^lisli coii-

*^tution the king has ever theoretically L<?en vested with

^ supreme legislative as well as execTitive powers. r>ut

^fte exercise of his legislative functions a certain numlxT

^ his subjects have been almost always, at least nominally,

^^odated with him. In the early times the king

frequently, perhaps in the majority of cjises, took the

^'tttiative in legislation ; but all the laws were <.'xpres8CMl

^ made with the counsel and consent of the; irltiw.

Alfred, for instance, in the preface to his c^xle, states

ttat he had introduced into it many former laws wliich

appeared to him good, while those old laws which ho

disapproved he had rejected by the counsel of his witi\n ;

and that, having made his compilation, he had shown it

to all his witan, who had exi)ressed their approval of it.

The* above remarks apply to ecclesiastical and civil h'j^isla-

tion alike ; for the king, with the advice of the lay and

spiritual members of the Witenagemot, made laws ui)un

religious no less than upon secular subjects.

1 82 History of iJie English Institutiatis

2. Early Norman Legislatioii. — ^Dnriiig the idgns
of the Conqueror and his sons the laws were pnt forth in
the form of charters granted or promulgated by the king,
which, however, always contained an expression to ihe
effect that they were made with the counsel and consent
of the nobles. The same was the case with the assizes or
constitutions, as they were called, of Hen. 2*8 reign.
Magna Carta was granted by the counsel of the aidi-
bishops, bishops, and nobles, and other faithful subjects;
and we know that as regards this instrument such was
the actual fact : but probably in many of the eniEu^tmentsof
John's predecessors the expression of consent was no more
than a form, or if the consent of the nobles was actually
asked for, it was granted as a matter of course, without
any option on their part to withhold it. And in many
cases the utmost that the words can be taken as implying
is, that the decree received the assent of the ConcUium
Ordinarium ; for whilst the meetings of the Great Coimcil
were infrequent, the former body no doubt possessed con-
siderable legislative as well as executive power. This is
evident from the fact that in Edw. I's reign, when
Parhaments, which had taken the place of Great Goundla,
began to meet regularly, and enact statutes in due foim,
there were issued, distinct from these parliamentary
statutes, articles and ordinances expressed as made by the
king and his council There are a few laws in our
statute book in which the mention even of the council is
omitted, and which therefore ostensibly rest on tiw
authority of the king alone.

Early Parliamentary Legislation. — ^The admission
into Parliament of all three estates of the realm^ did not
at once lead to the distribution of the legislative power
among alL The main object of the presence of the clergy

^ See nole 1, ^. 1^&.

Legislation 183

le commons being to sanction taxation, the latter

ntil 1295 sometimes summoned not ad faciendum,

rder to ^lact," but only wl consul end um et con-

dum kits qwB comitesy harones et }m)cere8 ordina-

**m order to give counsel and consent to sucli

as the earls, barons, and nobles shall ordain."

anally, as in 1290 and 1294, all the legislation of

ap was transacted by the barons before the repre-

ves of the commons had assembled. In 1290

iportant statute Quia Eniptores, which put an end

subinfeudation of land, was thus passed without

oncorrence. But from the year 1295 their enacting

>n8 were always recognised in the language of the

)y which they were summoned.

Growth of Power of Parliament. — Edward XL,
third year of his reign, was prevailed upon to
rer the lords of the realm to choose a body of per-
illed ordainers, who should make ordinances for the
iment of the royal household and of the kingdom
sraL These ordinances having imposed considerable
tdons on the king's prerogative were repealed in
and it was at the same time expressly enacted that
tters concerning the estate of the king, the estate
realm, and of the people, should be treated of and
shed in Parliaments by the king, and by the assent
prelates, earls, and barons, and the commonalty of
dm, according as it had been theretofore accustomed,
rinciple thus laid down became fully recognised in
urse of the following reign. The continuous prac-
l expressing in Acts of Parliament the concurrence
) commonalty as weU as of the lords dates from
a few years previously. About this time the Com-
began to exercise the right of initiating lft^\aitoDL

1 84 History of the English Institutions

by 'petition. Every petition was referred to certain
spiritual and temporal lords, appointed from time to time
as auditores petitionum, receivers or tryers of petitions,
and the king returned an answer to it in accordance with
their advice. Then from the petition and answer together
the statute was drawn up by the judges, — ^a practice which,
of course, involved the risk of a deviation in the Act from
the intention of the Commons, and which in fact "was
often fraudulently taken advantage of to effect that result
The statute so drawn up was expressed as made, not hy
the assent of the Lords and Commons, but by the assent
of the Lords and at the request of the Commons.

The clergy also, as late as the reigns of Ric. 2 and Hen.
4, either in Parliament or in Convocation, presented peti-
tions which became law at their request by the assent of
the Lords alone, without the concurrence of the Commons.
The laws against heresy of 5 Ric. 2 and 2 Hen. 4, which were
incorporated into the statute book, were of this description.

Bills. — The practice of legislating by Bills "was
gradually introduced in the reign of Hen. 6, and it soon
became a recognised principle, that in accordance with a
concession made by Henry V. in the second year of his
reign, but not immediately observed, the king must accept
or reject the BiU in its entirety, without qualification or
alteration. But if slight alterations were made by the Lords
in a Bill sent up to them from the Commons, it was not at
this time held necessary that it should be sent back to the
latter for assent to the amendment The presentation by
the Commons of private petitions, for which private Bills
were afterwards substituted, was introduced in Hen. S's
reign, and the greater part of the RoUs of Parliament of
that and the following reign was occupied with statutes
founded upon them. The main features of the form now
used in Acts of Parliament — " Be it enacted by the

I

Legislation 185

Siiig's Most Excellent Majesty, by and witli tlie advice
and consent of the Lords spiritual and temporal an<l
Commons in this present Parliament as8em1)I<'(l, and by
the authority of the same," have been eiiiploy^Ml with
tolerable regularity since 1 Hen. 7, from whicli time tin;
statutes, formerly drawn up in Latin or Frencli, and after-
wards in dupKcate in one of these languag(?s and in pjigliHli,
were exclusively drawn in English. The word " ii.s.s<.*nt,"
however, was originally used instead of " consent," an<l
the expressions " our Sovereign Lord the King," and " th(;
King's Highness," instead of " the King's Maj(;8ty." All
the enactments made in one session were up to this time
looked upon as chapters of one statute, and it was not until
7 Hen. 7 that it became customary to prefix a separate
title to each particular chapter, and to treat the chapters
as distinct Acts. The separation of private Acts (which
are only binding upon the persons specifie<l in them, and
not upon the nation at large) from the public general
statutes appears to date from 31 Hen. 8.

Legislation by King in Council — V>\ii legislation,
in certain cases, by ordinances (or laws which wanted the
consent of one branch of the Legislature), and by proclii-
mations issued on the authority of the king and his council
alone, independently of Parliament, was still continued.
The practice was expressly sanctioned, under certain limita-
tions, by st 31 Hen. 8, c. 8, which enacted that the
king, with the advice of a majority of his council, might
set forth at all times by the authority of that Act his pro-
clamations, under such penalties and pains as might seem
necessary, and that the same should be obeyed as though
they were made by Act of Parliament ; but the exercise
of this power was not to entail upon any person or body cor-
porate the loss of inheritance, possessions, offices, liberties,
franchises, or goods, nor the punishment of death, exce\>t

1 86 History of the English Insiitutiofis

in the case of heretics, or of persons who left the realm
to avoid a trial for an oflfence committed against any pro-
clamation ; nor shonld any proclamation subvert or infringe
the existing statutes or customs of the realm. In the
same reign the Act which established the Council of
Wales (34 & 35 Hen. 8, c. 26) enabled the king to make
laws for the PrincipaHty without the consent of Parlia-
ment This power was abrogated in Ja. I's reign. ^

Suspending and Dispensing Po'wers of the
King. — In addition to this right of independent poeiti've
legislation, the king possessed an arbitrary power of 8
negative kind, in his prerogative of suspending a law
altogether, or dispensing with its requirements in parti-
cular cases. Instances occur of the suspension of laws by
Eichard II. and Henry lY. ; and throughout the reigns of
aU the Plantagenets a dispensing power in favour of indi-
viduals was recognised as belonging to the king, and was
frequently exercised by him. Thus, although st 23 Hen. 6,
c. 7, after declaring that all patents to hold the office of
sheriff for more than one year should be void, expressly
enacted that the king should not have a dispensing power
in the matter, yet all the judges in Hen, 7's reign held
that the king might, by virtue of that power, grant a patent
for a longer term on good grounds, whereof he alone was
j udge. The ancient and undoubted prerogative of pardon,
which is possessed by the Crown, is in a sense a power of
dispensing with the law of the land. Attempts were
from time to time made to restrain it by statute, but all
such enactments have been held void, and have been
disregarded.

Eoolesiastical Legislation. — In the 46th year of
Edw. 3 we find in the writs of summons to Parliament the
declaration that Parliament is to be held " upon arduous
and pressing matters .... affecting the state and defence

Legislation 187

of onr lealm of England and the KngliHli (^hun:h/'' This
mention of the Chuich, though it never uecurs befon*, ]ui8
been repeated ever afterwards ; but its first insertion d(x.'8
not appear to have been due to any change in tlie relations
between Church and State. On the contniry, it incnrly
expressed the control over ecclesiastical ailairs whidi tlio
great national council continued to exercise after the
Conquest — though in a less degree than l>efon', owing
to the connection between Church and Stiite having Ix'en
weakened by the intervention of a foreign element, tlie
ecclesiastical dictation of the Court of Konie. When the
Convocations separated from Parliament (see p. 141) they
claimed and exercised a concurrent power of legLslation
for the cleigy in Church matters.

4. Ldznitation of the King's Powers. — Tlie
Statute which had invested royal proclamations with the
force of Acts of Parliament was repealed by 1 Edw. 6,
c 12, but the arbitrary issue of these proclamations was
long continued on many matters in which such an inter-
ference was not authorised by the law. In Mary's reign the
judges laid down that the sovereign might make a procla-
mation to put the people in fear of liis displeasure, but not
to impose any fine, forfeiture, or imi)risonment, " for no
proclamation can make a new law, but only confirm and
ratify an ancient one." The limits tlius defined were not,
however, strictly observed. In the next three reigns we
find proclamations against the growth of London, against
the residence of the county gentry there, against the
eating of flesh in Lent, or on Fridays and Saturdays, and
on other matters affecting the liberty of the subject. One
in 1634 fixed the price of poultry and butter. The

' '* Sai>er arduis et urgentibus negotiis .... statum et defen-
sionem regni nofltri Anglise et Ecclesia; Anglicantc coatingeutibus."

1 88 History of tJte English Institutions

violation of them was frequently pnnislied by fine or
imprisonment through the medium of proceedings in the
Star Chamber. In 1610 a remonstrance by the Commons
against them led to a reaffirmation by Sir Edward Coke
and some members of the council, whom the king con-
sulted on the subject, of the principles laid down by
Queen Mary's judges. ^N'otwithstanding this the practice
was not abandoned, a few instances of it being found
as late as Cha. 2's reign. The illegal proclamation of
James II. on the subject of the customs is noticed in.
cL X.

On the other hand, after the shock which the constitu-
tion sustained by the later proceedings of the Long Pair-^
liament, and the establishment of the Commonwealth, 'V^
was deemed necessary by express enactment (13 Cha. 2^ -
st. 1, c. 1, s. 3), to deny the existence of any legislative^
power in either House of Parliament, or both Houses
without the king, and to impose the penalty of a pre —
munire on a person who ventured by writing, or
speech, to affirm its existence. But while the inability o:
the separate branches of the Legislature to make lawsp-
without the concurrence of all three was being thus
gradually established, the claim on the part of the king,
not only to dispense with laws already made in favour of
particular individuals, but also to suspend their operation
as regarded the whole community, was not finally surren-
dered without a struggle.

In the reign of Cha. 2, in the course of a private
suit, the legality of the king's dispensing power came
under the consideration of the judges. It was then held
that the power could not be exercised with regard to the
common law, or any statute prohibiting a thing which
was in itself wrong or injurious, nor so as to prejudice
the .rights or interests of an individual or corporation.

Legislation 189

The deliberate employment, by Jamos II., of the royjil
powers of dispensing with and suspendinf,' Liwk, in ordiT
"to subvert and extirpate the Protestjint r<*lij^'i(jii, and
the lawes and Kberties of this kingdomc," wiih (luestioiUMl
in the courts, and formally declared to be letriil by tlio
judges of that day. A collusive acti(jn was brouj^'lit
against Sir Edward Hales, who, in defianc(> of tli(> Test
Act, had accepted the commission of colonel without
having received the sacrament in the Church of Kii<^dainl.
A royal dispensation was pleaded in defence, and eleven
judges out of twelve affirmed the kinj^s ri^^lit to dispense
with the Test Act. Not content with this dispensing
power, James, by his Declarations of ln<liil«,'(?nce, t«^ok
Upon himself to suspend altogether the opei-tition of the
penal statutes which had been enacted in former reigns
against Eoman Catholics and Protestant Dissenters. It
'Was evident that the assumption of this despotic; preroga-
tive, by which laws, however fundanientid or important,
could be abrogated at the mere will of the king, was
inconsistent with a limited monarchy; and the exercise
of it was one of the main causes which led to the Eevolu-
tion, and one of the first points upon which care was
taken after that event to obtain a clear legal definition.

Passing of Bills. — ^The method of passing Bills
through the Legislature had, before the Eevolution, become
settled in the form in which it now exists. According
to this method the Crown can initiate no Bill, except
Bills for a general pardon. The Lords possess the exclusive
right of originating Bills affecting the peerage, such as for
restitution of forfeited honours and reversal of outlawries;
while, with the Commons alone can begin Bills imposing
any tax or burden on the community. All other Bills
may commence with either House indifferently. Except
in the case of Bills of grace, as for a general pardon,

igo History of the English Institutions

which are passed on the first reading, the progress of a
Bill is as follows : — Leave is first asked to bring in the
Bill, and if obtained, it is then brought in and read a first
time. These, though really two distinct stages, usually
in practice follow immediately the one upon the othet
At a subsequent date the BiQ is read a second time, and
the House then goes into committee upon it, and discusses
its clauses in detail, making such alterations and additions
as appear desirable. All private Bills, and sometimes
public measures, instead of coming before a committee of
the whole House, are referred to a select committee of a
limited number of members specially appointed for the
purpose. When the consideration of the BiQ in com-
mittee is finished it is reported to the House, and at this
stage further amendments can, if desired, be introduced,
and it may be recommitted for the purpose. After the
report has been finally agreed to, it is read a third time,
and the question is then put, " That this Bill do pass." At
any one of these stages it is liable to be lost by an adverse
vote, or may be withdrawn by its promoters, if alterations
are introduced into it to which they cannot assent
When passed, it is sent to the other House, where it
undergoes the same process ; after surviving which, it is
returned to the House whence it originated, in order
that the latter may consider any amendments which
have been introduced into it since it left them. The
amendments are either agreed to or disagreed to ; and in
the latter case, if both Houses persist in their respective
views on the subject, a conference takes place between
deputed members of both Houses with a view to coming
to an agreement. K this is found impossible, the Bill
must necessarily be dropped. When a Bill has been
passed and agreed to by both Houses, it is submitted to
the Crown for the royal assent, and becomes law upon

Legislation 191

this T)eiiig given in the form, " le roi lo veut ;" tin*
negative, which would be fatal to the Hill, In^in^' ex]>n»ssiMl
in the courteous form, " le roi s'aviser.i." If a Hill has
heen lost at any of its stages, no second Hill to tlu^ Hnmt^
effect can be brought into Parliament durinj^' tlu^ Hunu^
session ; and if the session terminates oitluT by ])n)r(>g;i-
tion or dissolution before a Bill becomes law, W\k\ steps
through which it has passed are thrown away, and it
must be brought in and stiirted anew in a Kub.setiucnt
session. The whole process thus descrilxul is W(?ll adai)ted
to prevent hasty legislation on any subj'ect, and to pro-
vide the opportunity of due consideration being given to
every measure. At the same time, in cases of emerj^ency
it does not unduly hinder the passing of importiint 1 Jills ;
for, when necessity requires it, all tlio 8tei)s can bo got
through in one day. Thus, on Saturday the 17th
February 1866, the Bill for the Suspension of the Habeas
Corpus Act in Ireland was introduced at noon, and after
passing through all its stages in both Houses, received
the royal assent three-quarters of an hour after midnight
Eodeedastical Legislation. — Since the Reformation
the king and Parliament have legislated upon all Church
matters in the same manner as upon secular affairs. The
legislative power of Convocation was restrained by the
Act for the submission of the clergy to the king (25
Hen. 8, c. 19), which prohibited them from making any
new canon, or other law without the king's previous
license. This was occasionally given during the remainder
of the sixteenth and first half of the seventeenth cen-
turies. But after 1664, when Convocation ceased to
grant subsidies (see ch. x.), little business was done
in it In 1717 it was suddenly prorogued on account
of the excitement caused by the Bangorian contro-
versy, which had arisen out of the denunciation by the

1 92 History of the English Institutions

Lower House of the Convocation of Canterbury, of a
sermon on religious liberty by Dr Hoadley, Bishop of
Bangor. Thenceforward it was for more than a centniy
regularly convened every year, and as regularly prorogued
immediately afterwards. But about the year 1850 the
l>ractice of sitting for debate and discussion was resumed ;
and in 1861 the assembly was empowered by royal license
to alter the canon which prohibited parents from being
sponsors to their children. Again, in 1872 Convocation
was empowered, by letters of business from the Crown,
to frame resolutions on the subject of public worship,
wliich were afterwards embodied by Parliament in the
Act of Uniformity Amendment Act (35 & 36 Vict
c. 35.)

6. Bill of Bights. — ^The powers of the Crown as to
interference mth legislation were finally determined by
the Bill of Rights (1 WilL & Mar., sess. 2, c. 2), which
laid down as follows : —

** That the pretended |)ower of suspending of laws or the execu-
tion of laws by regall authority without consent of Parlyament, Ib
illegall.

** That the pretended power of dispensing with laws, or the
execution of laws by regall authoritie, as it hath beene assumed and
exercised of late,^ is illegall."

Abuse of Power by House of Gozninons. — ^The
right which, as will be shown in ch. x., the Commons
had at this time acquired, not only of initiating money
Bills, but also of having them passed through the Lords
without amendment or alteration, was about this time
perverted so as virtually to deprive the Lords of their
right of legislative interference in other matters. In

» The qualifying words in italics, which were inserted by the Lords,
liare TMerved to the Crown the ancient prerogative of pardoning
cnioViMlB, or commuting their sentence into one of a milder character.

Legislation 193

1692, and again in 1699, the Commons inserted in a

^nej Bill clauses on subjects of a genend cliarocter,

iQBpecting which the Lords were therefore unable to

fliake any amendments without depriving the king of his

leqnisite supplies. Though this most unconstitutional

and reprehensible artifice was on those two occotiiuns sue-

cesBfoly the Commons happily did not persist in the pmc-

tioe.

Boyal Assent. — The direct share of the king in the
oaking of laws, none of which can become binding with-
out his' consent, was of course retained unaltered at the
ieyolution. William III. throe times availed liimself of
b to reject measures which had l)een ixissed by lx)th
louses of Parliament, but since hi%j reign the uniform
epetition of the le roi (or la reine) le veut lias never once
)een broken by the contrary utterance (see p. 191). This
las, no doubt, been in great part due to the fact that the
Eaita of the country have since that time been conducted
)y a united and responsible ministry, acting in harmony
vith the king on the one hand, and Parliament on the
ither, as will be explained in ch. ix. Through its inter-
vention any difference of opinion between the sovereign
nd the two Houses upon a proposed measure becomes
mown, and is settled by concession on the one side or
he other, before the final step of the submission of the
Kll for the royal assent is reached. We ore therefore by
Lo means to conclude that during the last 160 years the
oyereign has exercised no personal influence whatever
ipon the progress of legislation, but rather that this
nfluence has been exerted in a different way, and at an
arlier stage in the proceedings. The sovereign, when
trongly adverse to a proposed measure, has induced his
oinisters to abstain from bringing it forward themselves,
nd to procure its defeat in Parliament if brought forward

BNGb INST. "S^

194 History of t/ie English Institutiofis

by others. Thus George IIL succeeded in preventing
during the whole of his reign the removal of the disabilities
of Roman Catholics and their admission to political privi-
leges, by his own personal aversion to the proposition,
without the necessity of exercising his constitutional
veto.

Classification of Acts. — Until 1793 all Acts wWi
were not specified to come into operation on a given day,
were hold to commence from the first day of the session
in wliich they were passed. This involved, in many cases,
the injustice of retrospective legislation, and was altered
by St. 33 Goo. 3, c. 13, which required all Acts in future to
be endorsed with the date on which they received the royal
assent, and prescribed that date as the time of their com-
mencement, if no other date of commencement was speci-
fied in the Acts themselves. Down to 38 Geo. 3, the
Acts had been divided simply into public and private,
the public Acts containing many of a merely local or pe^
sonal nature. But from that year onward the public
Acts were divided into two series, public general and
public local and personal Acts, the chapters of the former
being designated by Arabic, and of the latter by Eoman
numbers.

6. Power of House of Commons. — The course of
legislation since the Eeform Act of 1832 has been marked
by two principal features. Tlie first of these is the pre-
ponderating influence and power of the House of Commons,
which, as now representing with tolerable exactness the
wishes of the majority of the people, is felt to be that
branch of the Legislature which has the best right, within
due limits, to dictate the shape to be assumed by legisla-
tion on all important public matters. The function of
the Upper House, as regards these matters, has been almoet

Legislation 195

exclnsiyely confined to checking for a tiint* (ir iiKHlifyiu^

tiie proposals of the Commons — the instuiircs iKan*^' com-

pamtively few where it has made a iHTinaiicut stind in

8Qch matters against the action of the ('oiiiTii<)n.s, ur has

initiated a coarse of l^islation of Ha own.

Delegation of Legislative FHinctions. — Tlic
second feature has been due, in a great measure, to tlio
immense multiplication of legislative Imsincss thruu^'h the
augmentation of population, and the coinincn-ial and otlier
development of the country. The fivitiire alluded to is
the increasing tendency on the part of I'arliameiit to
delegate its legislative functions on various subjects as
regards matters of detail to jiersons, or iKKlics of i)ei'sons,
in whom it has confidence, heing content itself to lay
down the main principles of the new law. Thus, in tlie
various reforms which have been made in the procedure
of our law courts, the outline lias been hiid do^ni by
statute, and has been left to be filled u}) by rules made
by the judges of the courts themselves, the statute having
declared that such rules when made shall have the force
of law. Again, large powers have been given to the IMvy
Council as a whole, and to the Board of Tiiide and Com-
mittee of Council on Education, of making regulations on
various important subjects placed under their control As
an example of this may be cited the powers given to the
Privy Council in 1869 of legislating as to the conveyance
of and traffic in cattle, yn\h. a view to the ])revention of
disease. The powers with which the siinie body were
formerly invested of framing rules for the preservation of
public health, have now been transferred to the Local
Government Board. And secretcories of state are oc-
casionally empowered to make regulations on matters
within their respective provinces. So far, indeed, has
the practice been carried, that in certain cases PaiUamaiit

196 History of tfie English Institutions

lias latterly authorised the formation of public companies;
and construction of works of public utility, — things whici
were formerly always the subject of private acts, — to Iw
temporarily effected under the authority of provisioBiJi
orders of the Board of Trade, requiring, however, that
such orders should at an early date be confirmed by Act
of Parliament. Most of the tramways now laid down
in London and elsewhere were authorised by provisional
orders of this description. The willingness of Parliament
thus to depute its functions is intelligible, when we re-
member that in most cases (that of the judges, of course,
excepted), the persons to whom they are deputed are
either themselves ministers of the Crown, or the nominees
of ministers, liable to be changed upon a change of
ministry, and they are, therefore, persons who, at the
time, enjoy the confidence of Parliament, and wiU con-
tinue to exercise those functions only so long as that
confidence is accorded to them. Moreover, a check is
retained over the exercise of this delegated l^islation,
by the practice of enacting that the rules, regulations,
and orders, thus made under the authority of Parliament^
shall be laid on the table of both Houses on the earliest
practicable opportunity, and that if either House dis-
approves of them within a given time afterwards, they
shall cease to be in force. A less important form of
delegation of legislative powers is to be found in the
authority constantly given to companies to make bye-lavs
for the regulation of their own property and traffic.

Simplified Form of Legislation. — ^The actual
machinery of legislation has been much simplified smee
1832, by the disuse of superfluities and redundancies in
the language of the statutes, the reference to former Acts by
short titles and by the numbers of chapters and sections^
instead of setting out in full the enactments alluded to,

Legislation 197

^ \fj abandoning the repetition of the formal wortls of
^liactinent in every clause.

CHAPTER VIII.

JUDICATURE.

1. Judicial power of Eling. — Witli our present
developed ideas on the subject of constitutioiud govern-
ment^ we are accustomed to look upon it as enHential to
the well-being of a state that the judicial and legit^lative
fonctions should be entirely independent of each other.
But in prindtive political communities we u.sutdly find
them lodged in the same hands. Indeed, in the fonnation
of these communities the office of the judge htis prolxibly
in most cases preceded in point of time that of the legis-
lator, the latter office having subsequently become
developed out of the former, and having for a long time
remained united to it In other words, private laws were
made retrospectively in each particular case as it arose,
by the declBion of the judge upon it, before the idea was
conceived of framing a general prospective law which
should apply to a number of cases. Previously to the
eleventh century many codes of general laws had been
framed by the English kings and their witan, yet we
gather from the coronation oath taken by the kings in the
latter part of the pre-Norman period, that their judicial
duties were still considered as among the most important
of those attached to their office. In that oath the king
promised three things to his subjects : — 1st, That the
Church of God and all the Christian people should always
preserve true peace under his auspices ; 2dly, That he
would forbid rapacity and all iniquities to every condition'^

198 His tor V of the English Institutions

Mini, .'Ml.v, Tliat ho woiihl command equity and mercy ^^
nil Jiulj^iiKMits, in imlor that to him and his suhjects tii^
j^r.u'ioiis ami MuTciful God might extend His mercy.

Tlu* jiiilii'ial runrtiona of the king consisted at thistim^
ill dividing appt'als from the local courts noticed in
eh. ili. ; and in trying military officers, and matters in
which u high otVioor of state or a king's thegn vas
(*o!u'iM'nod» such jHTsons lH»ing exempt from the local
Juris«lirtion. Tht* Knglish kings had also adopted the
pnutiro of arhitnu'ily calling up to their own trihunal
lasos which hail not yot ixisst»d through the local courla
And though ciinics oomuiittoil in a county were charged
as hitMchos ot' till' jH\ioo of the shoritt* and not of the
king's peace, vet tho lattor was so far deemed to be
cvMiccrncil in ihc nuuntouaui.H.^ of onlor throughout the
n'alni, that in many c;isos whilo ouo-thinl of the fine payaWe
for the otVcnv'c went to tho !?horitl*or the ealdorman of the
shin', the nwnaiuing tw^v-thinls wen? remitted to the king.
In the ex.en'ise of his judioiiU functions the king wbs
always assisted either by the whole AVitenagemot, or by
svum^ seKvled u\t»mlvrs of tluit bovlv.

l*i\H>odurt\ The ukhIo of procedure and form of trial
empK\vevl in tho kingV court and in the shire-moot were
much tho «Kuno. We have lUreadv seen the number
///'(■/'''', which was sul^oquoutly to Kvome stereotyped in
the institution of tho jury, outer into the early English
juvlicial system in tho ropn's<.'utiitiou of the humlreds at
tho slun^iniK>t ^si'o p. 7rO. Wo tiud either it, or some
uuiltiplo of it, apjKunted iu? tho uuuilvr of judges to try
|«irtLoulur c;isos which had oouio Ivfore that assembly.
A^itu when a uuui was accused of luviiig oouiuiitteil an
u\juvy, one of the modes of do f once o[H?n to him was to
purge his cluiraotor by the oaths of twelve compurgators,
if he could tiud that uumln^r to swear to his innocence.

yudicature 199

■37 ^^ proceeding was called eomjnirgafinn or wager of law.

"*"* the accused were a king's thogn (in which case he

^^culd be tried before the king himself), his compurgators

^Xist be so likewise ; if he wore of a subordinate rank, it

^^Ufficed that his compurgators should be of the same rank

'^th himself. The other mode of rebutting an accusation

Was by undergoing ordeal of either fire or wator. Tlie

former consisted of taking up in the hand for a few

moments a weight of red-hot iron, or walking Imrcfoot

oyer red-hot ploughshares, and the party was acquitted

or condemned according as the blisters disappeared in

three days or not. Water ordeal was confined, at any rate

in later times, to defendants among the lower orders, who

either were required to plunge their bare arm up to the

elbow in boiling water, or were cast into a river or pond, —

innocence being determined in the first case by the almence

of injurious consequences, in the second, by the individual

floating on the surface instead of sinking. The water

ordeal was evidently of a more serious character, and

afforded less opportunity for evasion or collusion than

that by fire. Another mode of refuting an accusation

was by corsned, the accused person eating a piece of

barley bread, with solemn oaths and imprecations that it

might prove poison, or his last morsel, if his denial of the

change were false.

It must not, however, be supposed that these methods
of compurgation, ordeal, and corsned were always resorted
to for the determination of judicial suits. In many cases,
particularly where rights of property were in dispute, the
question was decided in a rough and ready way, the
judges and members of the moot deciding according to
the previous personal acquaintance with the facts of the
case, which they might possess as inhabitants of the dis-
trict in which it occurred. The different value attached

200 History of the English Institutions

to the oaths of witnesses according to their rank has l)een
already noticed (pp. 4, 6).

2. Jurisdiction of Eling. — Our judicial system
underwent several important changes at the Conquest
Like every other institution of the country, it became
tinged with the continental feudalism then introduced.
Besides the appellate jurisdiction hitherto possessed M
the English king, all matters in which his immediate
vassals — the barons, higher ecclesiastics, and tenants i»
capite — ^were concerned, now came before him as tho
sovereign feudal lord, in his feudal court A distmction
was made between pladta coroncBy or pleas of the OronBf^
cases where the interests of the king were involved, and
communia placita, or common pleas, causes in which th^
matter was only between subject and subject. The
former were very soon considered to embrace all prosecu-
tions for crimes and offences. Where these were punist-
able by the local tribunal of a lord or of the sheriff they
were said to have been committed against the peace of
the lord or sheriff, as the case might be. But, as has been
pointed out in ch. iii, this local criminal jurisdiction
was gradually abolished ; and at length, except in ^
counties palatine, all crimes were held to have been coiO'
mitted against the peace of the king, his crown and
dignity. The feudal court for the exercise by the W^g
of his judicial functions, was, according to feudal theoiy*
composed of the whole body of his vassals, who wei®
supposed to aid him in the trial of causes. It was, ^^
short, his Great Council, which thus took the place of tho
old Witenagemot, in judicature as well as in legislation'
But the meetings of this council, which ought to ha^®
been held every Christmas, Easter, and Whitsuntide, wei6>
in tact, during the early Norman reigns, very irregular;

Judicature 201

id, just as before the Conquest^ the judicial functions of
le witan had of necessity been deputed to a select nuni-
)r of their body, so now it was found impracticable to
ring all causes before the whole assembly of the Great
ounciL l^or could the king himself assume in all cases his
leoretical position of presiding judge. For, independently
' his prolonged absences in l^ormandy, in all criminal
dictments he was named as prosecutor, and many of the
uses which came into his court were actually such as
ore or less involved his own private interests, and
•old not therefore with decency be decided by himself,
scordingly, there was rendered necessary the appoint-
ent of a new officer, called Chief Justiciary, who,
isides other functions which wiU be mentioned hereafter,
leicised, in the place and name of the king, the highest
dicial power; the prerogative of pardon being alone
toined exclusively in the hands of the sovereign- For
dicial purposes the Chief Justiciary was placed at the head
the Concilium Ordinarium, described in cL vi, which
et at Christmas, Easter, and Whitsuntide, as the Great
>iincil was supposed to do, but for a longer time, and
metimes also at Michaelmas, at the city where the king
ippened at the time to be. Hence the origin of the four
w terms — Hilary, Easter, Trinity, and Michaelmas.
ot only did it decide matters affecting the Crown, but
also entertained common pleas or suits between subject
id subject) a fine being exacted for leave to bring such
its before it. In respect of its judicial functions the
uncil was called the Aula Regis or Curia Regis ; and,
lien required to deal with matters of revenue or finance,
adjourned to another part of the palace, and was called
ma Regis ad Scaccarium^ or Kin^s Court of Exchequer^
I members being styled in this capacity, Barones
viccarii, or Barons of the Excheqwer.

m. ■

202 History of the English Institutions

Severance of Common Law Courts. — In the year

1178, Henry IL reduced the number of judges in th©
Curia Regis from 18 to 5, and reserved a right of appeal
from the Curia, whose decisions had hitherto been final?
to himself in his Concilium Ordinariurriy from which the
Curia became thenceforth detached. The latter, how-
ever, continued to follow the king and sit where lie
happened to be. To remedy the inconvenience whicli W'^
this occasioned to private suitors, there was inserted in
Magna Carta the article, " Common pleas shall not
follow our court, but shall be holden in some plac^ i^
certain." Thenceforth the Curia became divided into %?X-
two branches — the Curia Regis proper, or Court of Kin^B m^
Bench, for pleas of the Crown, and the Court of Common ^^
Pleas for suits between subjects, which always sat at
Westminster. About the same time the Curia Regis o^
Scaccarium was formed into a separate tribunal, and di^^
tinct functionaries appointed as its judges. That 13*^
court sometimes wrongfully assumed the decision of co^'
mon pleas, appears from st. 28 Edw. 1 (Art. sup. Cari^^y
c. 4, which prohibits the violation of the Great Charter ^
that particular. As an appeal was held to lie from ^^
inferior courts to the Curia Regis proper, the latf?^
received appeals from the Exchequer until Edw. S's rei

and from the Common Pleas for a considerable time aft^
wards.

Jurisdiction of Chancellor, &o. — Other membe^^
of the Concilium Ordinarium were gradually entrust
with distinct judicial functions. Chief among these
the CancellariuSf or Chancellor, usually an ecclesiastic^ ^
and the keeper of the king's conscience as well as of th^^^
Great Seal, who, by virtue of his office, was charged witi^^
the duty of redressing, on behalf of the king, the wrongs^

Judicature 203

^^ snitors whom the ordinary courts miglit, from the

l^tnre of the case, be unable to assist He, like the

judges of the King's Bench, followed the king, and held

^ court wherever the latter happened to be (28 Edw. 1,

^ 5). After the abolition, in Edw. I's reign, of the office

of Chief Justiciary,^ the Chancellor became the highest

Judicial functionary of the land, through whom the king

Exercised his prerogative of appointing all the other judges

tnd justices. Again, military offences and offences com-

ditted out of the realm were tried bv the Constable and

ilarshal of England in the Court of Chivalry : and the

k>nrt of the King's Steward and Marshal was entrusted

dth the decision of causes arising within the verge or

mits of the king's palace; but it arrogated to itself a

luch more general jurisdiction, imtil checked by st. 28

Idw. 1, c 3.

Justices in Byre. — ^But besides all these courts, there
-as another way in which the royal authority was exer-
sed in judicial matters, namely, hj jitstitioe itinerantes,
p justices in eyre — itinerating justices, who were sent to
Iminister justice in the different counties. The plan of
rcuits throughout the country, both for financial and for
idicial purposes, by officers bearing the king's commission,
as old as Hen. I's reign; but it was not until Hen. 2's
>ign that the practice became systematic and continuous;
id for a long time the details with which it was carried
at were perpetually varying. In 1168 the number of
istices in eyre was four. In 1173 the kingdom was
Lvided for financial purposes into six circuits, three justices
eing appointed for eacL Six years later we read of a
[vision of the country for judicial purposes into four parts ;

1 The office was, however, as to some of its judicial duties, continued
1 the person of the Chief Justice of England, the head of the Coust ot
ing*8 Bench.

204 History of the English Institutions

and this arrangement was in turn superseded by others of
an equally fleeting nature.

The primary judicial duty of the justices in eyre was,
no doubt) the decision of causes in which the Crown was
concerned. These were still tried in the county couitsi
but under the presidency of the justices, and not of the
sheriff or other local officer; it being at length expressly
laid down by the Great Charter, that no sheriff, constable,
coroners, or bailiffs should hold pleas of the Crown. But
the jurisdiction of the justices became gradually extended.
The same charter provided that the king, or in his ahsenee
from the realm his Chief Justiciary, should send two
justiciaries throughout every county four times a year, to
take, with four chosen knights of the shire (see p. 207),
the assizes or recognitions in suits about land. In sub-
sequent confirmations of the Charter the circuits were
limited to one a year ; the assizes were to be taken only
in the county where the land in dispute was situate, or, if
the cause could not be finished during the stay of the
justiciaries in the county, it might be concluded at sodm
other place on their circuit ; and difficult points were to
be referred to the justiciaries de hanco, the judges sitting
in the Court of King's Bench. The judges on circnit
had not at this time power to try common pleas; and for
general business, other than the assizes of land and criminal
matters, the circuits appear to have been only septennial*
A change was, however, made in these respects by tbe
statute of Westminster the second (13 Edw. 1), c 30.
Thenceforth two justices were to be appointed, who, vnS^
two of the discreetest knights of the shire into whicl^
they should come, should try assizes and attaints not
oftener than thrice a year ; and they were empowered to
try other civil causes, such as trespasses and the like ; but
were required to adjourn questions of special difficulty for

Judicature 205

the consideratioD of the justices of the Bencli. The
results of all the trials on circuit were also to he certilieil
to the Bench, where alone judgment could l)e given. The
tnals of these ordinary civil causes were caUiul nm priiis
trials, from the fact that the juries to be engaged upon
them were to appear before the justices of the iioncli at
the central court on a stated day, nisi priu/t Juftticiarii
Uinerantea venerint in comitatwii, *' uidess the justices in
eyre should previously come into the county," whicli, in
fact^ as the circuits were held at regular intervals, always
happened.

EopleBiaatioal Ooxirts. — ^The severance of the eccle-
siastical from the civil judicature, which took place at the
Conquest^ has been already noticed (p. 15). An attempt
was made to re-unite them by Henry I., but Stoi)hen again
conceded to the clergy the inde|)e;idence of their own
courts, which at length claimed jurisdiction in all causes
in which any member of their order was concemed on
' either side^ notwithstanding that the opposite party might
be a layman. The judicial anomalies, to which this undue
exercise of clerical authority gave rise, were increased by
Ihe practice of carrying appeals from the ecclesiiistical
couitB to Eome, and led in 1164 to the passing of the
CoiiBtitntions of Clarendon, which established the amena-
bility of the clergy to the temporal courts in civil and
ciimixial cases, and prohibited appeals to Eome. Lut the
eizcessiye severity of the punishments at this time in-
flicted by the common law led men to look favourably
upon the milder ecclesiastical, or canon law ; and it was
j>TObably owing to this that the Constitutions of Clarendon
T^ooained but for a short time in force, and the clerical
^cmxia speedily succeeded in recovering their former juris-

lure. — ^But while such were the changes made

2o6 History of the English Institutions

after the Conquest in the constitution of our tribunals, no
less important were those made in the forms of proceduie.
In the first place, a new mode of trial was introduced, that
of dvsllumj beHuniy or wager of battel — c^ trial by combat
— to which recourse might be had in a military cause, or
by a person accused of felony by a private individual, in
the proceeding called an appeal of felony, and which was
also, until the reign of Hen. 2, the only mode of determining
a suit by writ of right, the regular form of suit for the
recovery of land. The combat was carried on with batons
or clubs and leathern targets, from sunrise till the stars
appeared, due precautions being taken against any iinfeii
advantage through sorcery on either sida In suits about
land, champions were appointed by the two parties to fight
for them ; and if the defendant's champion prevailed, or
even maintained his ground, the plaintiff lost the smt>
otherwise he recovered the land. If either champion
proved recreant and yielded, he was for ever disgraced, and
lost his civil rights — ^his status as a liber et legdlis Jwm^
On the other hand, in trials for felony, the parties fought
in person, unless physically incapacitated, in which case a
champion was allowed. If the prosecutor yielded, he W«*
disgraced ; if the accused was slain or yielded, he t^
deemed to be convicted of the felony, and suffer^
attainder, and, in the latter case, was immediately hang<0^
This mode of trial did not exist in boroughs, and rapidL^^
fell into disuse in the counties. ^ For, owing in part '^
the penalties imposed upon the party appealing, in
he failed to prove the guilt of the accused, appeals
felony by persons individually injured by the crime wi
soon almost entirely superseded by the method of p:
ceeding by indictment at the prosecution of the Crowr^

* It was not, however, actually abolished until 1819 (69 Geo. ^
c, 46).

Judicature 207

in which wager of battel was not admissible : and for
deciding writs of right — as an alternative at the option of
the defendant to the wager of battel — Henry IL intro-
duced into comities the Grand Assize; the proceedings in
which were as follows : —

The sheriff summoned out of the neighbourhood of
the disputed land four knights of the shire, who should
under oath select twelve other knights from the same
neighbourhood, and these last were to decide upon their
oaths which of the litigants had the better right to the
land. Such was the earliest distinct establishment of the
jury syBtem in our law. This practice of recoffnitiorif as it
was called, was also introduced by Henry II. into other
salts affecting land, with the difference, however, that
the twelve knights were to be summoned directly by the
sheriff And by the assize of Clarendon, in the same
reign, recognition was extended to criminal matters.
Twelve lawful men of each hundred, and four of each
township (the numbers, be it observed, which of old had
represented the hundred and township in the shire-moot),
were required to present upon oath to the judges and to
the sheriff persons accused of committing or abetting
jobbery or murder in their district This was the germ,
not of the common, but of the grand jury ; for the pre-
sentment was not considered conclusive evidence of guilt,
and was followed by an ordeal by water. The members
of this grand jury seem to have been originaUy nominated
by the sheriff; but this power being sometimes abused,
the assize of 1194 ordained that in every county four
knights should be appointed, probably still by the sheriff,
and these were in every hundred to choose two knights,
who should select ten more knights, or lawful men,
to form with themselves the jury for the hundred. In
Magna Carta the four knights are spoken oi ^ ^\&^\j^^

2o8 History of the English Ifistitutians

by the county. In that great compendium of our constita-
tion, as well as in the frequent confirmations of it down
to 25 Edw. 1, there were inserted many provisions for
the due administration of justice to the king^s subjects.
Besides the general promise, " We will sell to no one,
we will not deny or delay to any one right or justice," *
there was a declaration, that fines should be apportioned
to the heinousness of the offence, and should only be
ioflicted upon the oath of trusty men of the vicinity.
The interests of the nobility were protected; "Counts
and barons shall not be amerced except by their peers,
and then only according to the d^ree of the offence" i
and the liberties of the commonalty at large were pro-
vided for by the famous clause cited in ch. iL (p. 18).

The cases in which trial by jury could be avoided by
the alternative left in the few concluding words of tb**
clause became gradually diminished by the disappeara»<*
of the older modes of trial. Compurgation, or wager of W^^
fell into gradual disuse in the counties, through the adop"
tion, in criminal matters, of the system of presentmeiXi'^
and, in civil causes, of forms of action in which resort ^
it was not allowed, though it was retained in so^
boroughs imtil long afterwards.* The gradual aband^^
ment of trial by battel has been already noticed. Ori^*^
was abolished in 3 Hen. 3, and this rendered necess^^
the trial of the accused individual by a second or pe'^^
jury in its place, after he had been presented by the gra^^
jury. This second jury was at first, like the grand ju^^^*
supposed to decide the guilt or innocence of the accus^^
from previous knowledge of the facts, and was theref(F^^
chosen from the district where they had occurred. Tt^

' c. 40, Nulli vendemus, nulli negabimus aut differemos rectu,^^^
aut justiciam.

* Wager of law was finaUy abolished by st 3 & 4 WilL 4, c 42, 8. U

Judicature 209

same individuals were, in fact, witnesses and jury,
^^^niiig the following reign, in both criminal and civil
Dtotters, the practice was introduced of afforcement of
fte jury, that is to say, of calling in persons acquainted
^th the matter in controversy by way of substitution or
Edition in cases where the original jurors or recognitors
vrere found to be ill informed upon it.

The province of the jury was in all cases confined
%> the determination of the facts at issue, questions of
aw being either decided by the justice who presided at
he trial, or, in cases of difficulty, referred by him to the
ndges of the Bench; according to the maxim of our
av, De quasstionibua juris respondent jiidices, de quces-
Umhvs foLcti juratores. The decision of points of law,
■8 opposed to those of fact, was after the Conquest
ledged in by an elaborate and over-technical system of
^leading, to which, in addition to its inherent difficulties,
^^ superadded that of being, until 1362, expressed in
Gorman French instead of the native English of the
'©opk

Hue and Cry. — ^The principle of the liability of a
^strict for a crime committed withiu it, or by one of its
^^bitants, continued to be recognised after the Conquest,
*"^t in Edw. I's reign the hundred was fixed as the imit
^ liabiKty. When a robbery or felony was committed
^thin its limits, its members were required to pursue the
ftender with horn and voice, or hvs and a'y, as it was
^chnically termed, on horseback and on foot, imder the
"Uidance of the constables. And a person robbed could,
^ the robber escaped, recover damages from the hundred
^i the loss which he had sustained.

English Oonunon Law. — ^N'otwithstandiug all the
Iterations in the law which took place at the Conquest,
^ large a portion oi the old English, law lemaima^ ^a ^'^

£MC. INST. O

2 lo History of the English Institutions

constitute, with the customary law which the Normans
hrought over from Normandy, a system known as the
common law of England, and differing widely from the
laws of continental nations, which are mainly based on
the Eoman civil law.

3. Jurisdiction of Goiirts. — ^It has been seen ikt
the exercise of the king's judicial powers was shifted first
from the Great Council to the CkmmLium Ordmariurn, and
then to distinct courts formed out of the latter. The in-
dependence of the judges of these courts was aflSimfld
by st. 20 Edw. 3, c. 1, which declared that the king had
commanded all his justices (including the barons of the
Exchequer) to do equal right to all his subjects, rich and
poor impartially, disregarding any letters, writs, or coni-
mandments to the contrary which they might receive
from the king, or from any other quarter. In the sanw
reign the Court of Exchequer Chamber, consisting of the
chancellor, treasurer, and judges of the King's Bench
and Common Pleas, was constituted to hear appeals hy
writ of error from the Court of Exchequer. Judical
functions were, however, still held to reside in, and "wew
actually exercised by, not only the ordinary comiA
but also the Great Council, and afterwards the assemhly
which took its place, the High Court of Parliament
They were formally taken away from Parliament, as »
whole, by st. 1 Hen. 4, c. 14, which enacted that no
appeals should thenceforth be made or pursued in Parlia-
ment. But the Upper House, the liueal successor, so to
speak, of the Great Council, and through it of the Witen-
agemot, continued not only to entertain and decide
appeals from the decisions of the other courts, but also to
entertain in the first iostance questions respecting civil
injuries which were brought before it in the form of peti-

Jtidicatiire 2 1 1

tions for lediess. This latter jurisdiction, wliidi wiis in
fact a species of private legislation, seems to hav<*, ftillen
into disuse when Bills took the place of i^'titionH in ])jir-
liamentary procedure, and with the exception of certain
isolated instances, which will be mentione<l IxTcafUir, the
(ady remaining case in which the Lords continued to
exercise judicial powers in the first instance, was that of
Qie criminal proceeding called impeachment. In this
proceeding the House of Commons appears an proitp.rnfor
on behalf of the nation whom it represents, and the Lonls
are the judges. A lord can be impeached f(»r any CJipitiil
offence, for the judges to try him will be liis |H?t»rs ; Imt
a commoner only in the case of high misdemeanours or
offences against the State, in respect of whicli, and of
which alone, the Lords are considered as the peers of the
whole nation. This was laid down in 137G upon the
very first instance of impeachment — that of Lord Latimer
and certain other lords and merchants.

The jurisdiction of the chancellor as a sej)arate judge
has already beon noticed ; but it was at first ex(^rcised by
Imn merely as one of the members of the council, and was
in fact considered as part of the jurisdiction of that body.
The existence of his court, as the Court of Chancery,
competent to give relief to suitors independently of the
council, dates from the latter part of Edw. 3's reign.

The same reign witnessed the severance froni the
council of auother court, the Court of Admiralty, for the
trial of maritime causes, presided over in theory by the
Lord High Admiral of England, while an officer of that
name existed, but in fact by a judge sitting as his deputy.
This court having occasionally to deal with cases afiecting
foreign states and their subjects, administered not the
English common law, but a mixture of the canon or civil
law, and a maritime law generally agreed to by the Euro-

212 History of the English Institutions

pean nations. In 13 Ric. 2 it was found necessary to
pass statutes restraining both this court and the Court of
the Constable and Marshal from meddling with matters
cognisable by the common law.

But the creation of these new courts did not, any more
than that of the common law courts, deprive the king's
council, as a whole, of its judicial powers. A general
right of appeal to the king was still held to exist, and it
was in the council that he usually heard the appeala
Attempts were made by the Commons, in the reigns of
the three Lancastrian monarchs, to limit this appellate
jurisdiction of the council, but without success ; and in
1487, by st 3 Hen. 7, c. 1, a new original jurisdiction
was given to the chancellor, treasurer, and keeper of the
privy seal, or two of them, with a bishop and temporal
lord of the council, and the chief justices of the Kin^s
Bench and Common Pleas, or two other justices in their
absence, to try murders and injuries to the person, robberies,
perjuries, and violent ejectments of lawful owners from
their lands, with power to punish the offenders as if they
had been convicted in due course of law. Thus by Act
of Parliament were expressly given to a specified committee
of the council powers which were afterwards exercised
by the whole body, or members specially delegated by
itself, in its famous court of the Star Chamber ; and a later
Act, 31 Hen. 8, c. 8, empowered that court by name to
punish disobedience to royal proclamations by fine and
imprisonment.

Trial by Jury. — ^The reason for establishing the court
created by st 3 Hen. 7, c. 1, is stated in that Act to be
that the course of justice was prevented by the practice
of colluding with and abetting offenders, empanelling
partial juries, corrupting jurors by bribes, and creating
riots and unlawful assembhes at trials.

Judicature 213

It was the pievalence of these evils — due, no doubt, in
great measoie to the disorders arising from the civil wars
of the Eoses — ^which i9duced Parliament thus to supersede
the repeated enactments which had been passed in Edw.
3*8 leign to ensure that no one should be brought l)efore
the king or council except by indictment or presentment
of good and lawful people of the same neighbourhood,
nor should be imprisoned or deprived of his lands or
franchises except by due proceeds of law, nor ])e fore-
Judged of life or limb, or have his property seized against
the form of the Great Charter and the law of the land
(6 Edw. 3, c. 9 ; 25 Edw. 3, st 5, c. 4 ; 28 Edw! 3, c. 3 ;
42 Edw. 3, c. 3).

The fact was that the working of the jury system,
which had never been extended to proceedings before the
conncily or in the Courts of Chancery and Admiralty,
was found in the common law courts to be attended in
practice with many drawbacks. It is true that it had
by this time reached an advanced stage of theoreti-
cal development. As early as Edw. 3's reign the jury
had begun to abandon their joint character of being wit-
nesses as well as judges of the fact, and to receive other
evidence besides that of the prosecutor or plaintiff and
their own. The first step towards this was the separation
of the affqrcinjg jijrors (see p. 209) from those originally
chosen. The former thus assumed the position of wit-
nesse& A full account of the system as it existed in the
reign of Hen. 6 is given by Lord Chancellor Eortescue,
in his work, "De Laudibus Legum Anglise" (chaps. 25-32).
It appears that special juries were at that time summoned
for the trial of each particular cause; for, though wit-
nesses were adduced, it was still deemed essential that
the jurors should be taken from the neighbourhood of
the matter at issue, that they might avail themselves of

214 History of tlie English Institutions

their personal knowledge both of the facts in question
and of the credibility of the witnesses. The jurors
were to be good and lawful men, and men of substance;
and either party was allowed to challenge the array, or
object to the panel of jurors summoned on the ground
of partiality. A person tried for his life might arbitrarily
challenge and strike off the panel as many as thirty^ye
without assigning a reason. But all these precautions
were in many cases insufficient to secure a fair tiiaL
Eepeated Acts were in vain passed to check the practice
of bribing the jurors; nor was the mischief effectually
restrained by their liability to a writ of attaint for giving
a false verdict, upon which, if found guilty by a jury of
twenty-four, they were to lose all their property and civil
j)rivileges, and become for ever infamous; they were to be
themselves imprisoned, to have their wives and children
cast out of doors, their houses rased, and their trees cot
down and meadows ploughed.

4. Ecclesiastical Courts. — ^At the Reformation the
sovereign acquired a new judicial power, by the transfer
to him of the appellate jurisdiction over the ecclesiastical
courts which had formerly been exercised by the Court of
Eome. St 25 Hen. 8, c 19 directed that appeals from
the archiepiscopal and other ecclesiastical courts, from
which appeals had formerly lain direct to Home, should
be made to the king in Chancery, and should be heard by
commissioners appointed by the king under the great
seal to try the case, whose decision should be final
These commissioners, whenever appointed, constituted
what was called the High Court of Delegates. They
were usually three puisne judges, one from each of the
common law courts, together with three or more civilians
or persons versed in the civil law. In special case% how-

Judicature 2 1 S

ever, the commission was strengthonod by the addition of
spiritoal and temporal peers, the nunibor of each being
for the most part three. By si 8 Eliz., c. 5, a provision
sunilar to that of st 25 Hen. 8, c. 19, respecting ecclesias-
tical appeals, was made as to appeals in civil and marine
causes, for which the High Court of Delegates was thus
constitated the final tribunal

But besides this appellate ecclesiastical jurisdiction,
the Act of Supremacy (1 Eliz., c. 1) empowered the
queen to appoint commissioners with an original jurisdic-
tion in matters ecclesiastical And tliis was occasionally
done previously to 1583, in which year a commission was
Lssned to certain bishops, privy coimcillors, clergymen,
and civilians, giving them full powers to inquire into and
punish by fine and imprisonment immorality, heresy, and
offences against the Acts of Supremacy and Uniformity.
These commissioners and their successors constituted
what was called the Court of High Commission; which,
in matters within its province, gradually rivalled the
arbitrary and oppressive proceedings of the Star Chamber,
and inflicted the same cruel punishments as that court.
It shared the fate of the Star Chamber in 1640, and the
Act which abolished it contained provisions which in
effect neutralised the jurisdiction of all the other eccle-
siastical courts.

These provisions were repealed after the Restoration,
but with an express saving against the revival of the
Court of High Commission. The saving was, however,
disregarded by James II., who issued a very similar
commission in 1686, which led to another and final con-
demnation of such commissions after the Eevolution.
The continuance of the punishment of burning for heresy
after the Reformation, and its final abolition in Cha. 2's
reign, have been noticed in ch. il (p. 28).

2 1 6 History of tlie English Institutions

Star Chamber. — ^By the establishmeiit of the Courts
of Delegates and High Commission, and the increased
importance of the Courts of Chancery and Admiralty, the
jurisdiction of the council's Court of the Star Chamber
became almost exclusively confined to criminal cases —
those mentioned in the Act of 3 Hen. 7, and others over
which it assumed cognizanca It asserted the dangeroos
and indefinite right of trying all offences which were not
punishable by common law, such as corruption, breacbei
of trust, malfeasance in public af&drs, and other political
transgressions ; and having power to inflict any penaUj
short of death, it by d^rees added to those of fine and
imprisonment the more cruel punishments of the pilloiy,
whipping, branding, and cutting off the eai& It alao
introduced into its proceedings examination by tortme^
which was unknown to the English common law.

Similar powers were exerdsed locally by the Court of the
Chancellor and Council of the Duchy of Lancaster, the
Exchequer Court of the County Palatine of Chester, the
Court of the Council of Wales erected in 1542 to repietf
disorders in the principality and adjoining counties, and
notably by the Court of the Council of the North. Thi»
latter council was established after the insurrection of
1536, as a court of criminal jurisdiction in Yorkshire and
the four more northern counties, to try cases of riots, con-
spiracies, and acts of violence. It had also a jurisdiction
in civil suits where either party was too poor to bear a
process at common law, and its powers were immensely
increased by a commission issued by Charles L at the
instance of Sir Thomas Wentworth, afterwards Earl
Strafford.

Not content with the judicial powers exercisable
directly by the Crown through the medium of these
coarts, Charles L, in the first years of his reign, issued

Judicature 217

commissioiis for taking proceedings by martial law in
different parts of the country against soldiers, mariners,
and persons joining with them, who should commit
murder, robbery, felony, mutiny, or other outrage or mis-
demeanour. The Petition of Right (3 Cha. 1, c. 1) com-
plained that by reason of these commissions some persons
had been put to death who, if they had deserved death,
ought to have been judged and executed by the law of
the land, and others had escaped pimishment owing to
judges having unjustly refused to proceed against them
according to law, under the pretext that they were punish-
able only by the commissioners according to martial law;
and after condemning such commissions as contrary to
the laws of the realm, it prayed that they might be
xevoked and anniQled, and none of a like nature be there-
after issued.

One of the first acts of the Long Parliament in 1640
"was to abolish the Court of Star Chamber, together
"with every court of similar jurisdiction, on the groimd
that its judges had exceeded the powers given to them by
laWy that its proceedings had been found to be an intoler-
able burden to the subjects, and the means of introducing
an arbitrary power and government, and that aU matters
determinable in it could be redressed at common law.
Besides the abrogation which was thus effected of aU the
criminal power of the Privy Coimcil, it was enacted that
whereas the council had of late assumed power to inter-
meddle in civil causes and matters between party and
party, in future neither the king nor the council should
have power, by petition, articles, or othe^ arbitmry pro-
ceeding, to inquire into or dispose of the lands or goods
of any subject of the kingdomu Thenceforth all legal
proceedings, whether criminal or civil, have been admis-
sible only in the ordinary courts of justice, and according

2 1 8 History of the English Institutions

U) tlift due course of law, except only in those special
cfUiOH in which I^arliament has claimed and exeicised
the right to intf;rfere, and which will be noticed later
(mi p. 219).

Courts of Law and Equity. — With regard to the
re^jlar legfil trihunals themselves, the relations between
the courtH of c^^mmon law and the Conrt of Chaneeij
werf; not at tlie time of the lieformation very aecmatelj
defin^^l. I>ut the f^^uitable jurisdiction of the chancellor
)>f;r^irne c^niHolirlat^^l in the sixteenth and serenteeiith
ccTituri^jH ; and hi« right to interfere with actions in pro-
grfjHH in the rx^mmon law courts, 'and even with judg-
ificntH wXwiUy given in them, where, owing to the tech-
nical iti*^ of their mode of procedure, they were nnable to
jwUi out true juHtice in the matter, was finally settled in
J a. Vh rfjgn. The right was vehemently opposed bj
Sir l^lward (Joke, chief justice of the King's Bench, and
at IiIh c<ivert instigation indictments were on one occasion
actually j)referre<l against j^rties who had applied to the
C/Ourt of (/hanc<;ry for relief in a matter which had been
decJded by the King's I^nch, and who had procured s
rlfiaulting witness, whose absence had occasioned &b
failure of the common law action, to be committed for
<'j)uUimi)t by the chancellor. But James directed the
attorney-general to procr^^l in the Star Chamber against
the j>romr)t<jrs of tlie indictments, and made an order in
the c^jtnicil Ikx^Ic, declaring that the chancellor had not
exc<j<}<led his jurisdiction; and the power of the Court of
(/hanc(jry t^j override the common law courts has never
sinc(j Wjn questioned.

Notwitlistanding enactments in the thirteenth and
frmrtecnth CfmUmoH to the conti-ary (see p. 202), it was
in prfxxjss of time found convenient to give all the three
common law courts a concurrent power of trying private

Judicature 219

raiia This was effected by means of legal fictions. If
it was desired to try a common plea in the King's Bench,
the commission of a trespass in connection with it was,
hj consent of both parties, alleged, and this being a
breach of the king's peace gave that court jurisdiction in
the matter. Again, the Court of Exchequer hod prc)j)erly
a common law and equitable jurisdiction only in coses
a£focting the king or his debtors ; but on a feigned allega-
tion that the plaintiff was a debtor to the king, and pre-
Yented from discharging his debt through the wrong done
him by the defendant, the court would entertain an
action at common law or a suit in equity between private
individuals.

Parliament. — In proportion as legislation became
more and more recognised as the exclusive province of
Parliament, the separation between it and the judicial
power in the constitution, which is at the present day
looked upon as an essential guarantee against tyranny
and injustice, tended to become more and more defined,
though it did not attain to being absolutely complete.
For, besides the existence of the parliamentary judicial
proceeding of impeachment, each House of Parliament
continued to exercise the right of punishing its own
members and persons who refused to attend to its
summons, or offended against its privileges. Nor was
this alL Cases from time to time occurred in which the
Clonmions conmiitted individuals to custody during the
continuance of the session for political offences uncon-
nected with themselves. The latest instance of this was
the conmiitment of the printer Mist in 1721 for printing
a Jacobite newspaper. Their practice has since been to
direct a prosecution of the offender by the attomey-
generaL The Upper House sometimes went further, and
imposed fines upon political offenders, and even sentenced

220 History of the English Institutions

them to the pillory (an instance of which occxirred so late
as Greo. 2's reign), and to imprisonment extending beyond
the duration of the session. In 1621 they condemned
one John Blount to imprisonment for life with hard labour
in BridewelL

Another mode in which Parliament has exercised
quasi-judicial functions has been by passing Bills of
attainder, inflicting in individual cases death, comiptiQii
of blood with its attendant consequences on descendants,
and other pains and penalties. But this proceeding must
be regarded as— at any rate, in form— of a legislative, and
not of a judicial character.

House of Lords. — ^The appellate jurisdiction of the
House of Lords was definitely settled in the seventeenth
century, during the course of which its claim to original
jurisdiction was finally abandoned; and, on the other hand,
it for the first time received appeals from the Court of
Chancery. It had previously done so only from the com-
mon law courts, appeals from which first passed throni^
the Court of Exchequer Chamber, whose jurisdiction
had been enlarged in Eliz.'s reign, the barons of the
Exchequer being added to its judges. As r^ards cooitB
in which the civil law was administered, such as the ad-
miralty and ecclesiastical courts, it had become recognised
that the right of appeal was not to the Lords, but to the
king; and they therefore, in 1678, refused to hear an appeal
from the Court of.T'Mpies whyh the king had conr
stituted as the highest api^UatoKDunal in such casea

With respect to the peers whcWiear the appeals, it has
long been the established practice that only those take
any active part in the proceedings who have personally
held, or are at the time actually holding important jndidal
posts (11 CL&F., 421-426).

Judges. — Independently of the existence of arbitiaiy

Judicature 221

conrfcs^ there were in the ordinary courts of justice pre-
viously to the Bevolution many elements favourable to
judicial tyranny. Foremost among tliene was the fact
that the judges of the common law courts nut only
vacated their seats on the bench upon a demise of the
Crown, and only resumed them if reinstated }>y the now
king; but also, at any rate during the reigns uf the Stuarts,
weie almost invariably appointed to hold office durante
hmeplacUOf ^ during the pleasure of the king," so as to be
at any moment arbitrarily removable by him.

It is only surprising how, under these circumstances,
the judges were ever able to act counter to the wishes and
directions of the sovereign. The degree of 8u}>8er\dency
to which they were reduced cannot be better illustrated
than by their conduct in the case of the cortimendamji in
Ja. I's reign, in which the king's prerogative of granting
a benefice to a bishop to be held in cmnincndam, or along
with his bishopric, was called in question. The judges
of all the courts having received a letter from the king,
desiring that they would not give judgment in the matter
until he had spoken with them, replied that they were
bound by their oaths not to regard any letters that might
come to them contrary to the law, and that they had there-
fore proceeded in the cause notwithstanding the letter.
Upon this they were all summoned to the council cham-
ber, and, vfith one exception, promised in future to stay
proceedings in a cause when the king desired to consult
with them upon it as Sfrecting his interests. Sir Edward
Coke alone answered, tfijat when the case arose ho would
do what it was fit for a judge to do, and was, in conse-
quence, shortly afterwards suspended and dismissed from
his office of chief justice of the King's Bench.

Juries. — If such was the dependent position of the
judges, that of juries was hardly less so, owing to the

222 History of tJte English Institutions

power exercised by the Star Chamber of pimishiiig them
if they discharged their functions unsatisfactorily, — a
power which was frequently exercised after an acquittal
on a charge of treason. And in Cha. 2's reign, when the
Star Chamber was no more, a grand jury was on one
occasion summoned before the King's Bench and repri-
manded for having found a bill of manslaughter instead
of murder. There are also instances of jurors being fined
by the judge for acquitting against his direction. But
the House of Commons in 1667, and the judges them-
selves about the same time, passed resolutions that such 8
proceeding was illegal, and no case of it has occurred since
1670, when a juror who was imprisoned for non-payment
of the fine obtained his release by Habeas Corpus.

Besides what the jury system suffered from the influence
thus exerted upon jurors, many causes were withdrawn
altogether from trial by jury by being brought before courts
where that institution did not exist As regarded crimir
nal cases, this practice of dispensing with juries was
abolished by the overthrow of the Courts of Star Chamber
and High Commission ; but it continued to prevail witS*
respect to all the civil cases decided in the Court o4
Chancery, in which the institution of juries was TinknowiO-*
and the jurisdiction of which was continually on tl**
increase.

6. Bill of Rights.— The BiU of Eights at the Rev^:^

lution declared that the commission granted by Ja. 2 fc^
erecting a court of ecclesiastical commissioners, and
other similar commissions and courts, were illegal and pe;
nicious ; that excessive bail ought not to be required
judicial proceedings, nor excessive fines imposed, nor crui
and unusual punishments inflicted ; that jurors ought \jc^
be duly empanelled and returned, and ought, in trials fo:::^

Judicature 223

high treason, to be freeholders ; and that all grants and
promises of the fines and forfeitures of particular persons,
before conyiction, were illegal and void

Jndgea— The Act of Settlement (12 & 13 Will 3,
c 2) effected a most important alteration in tlio position
of our judges, by enacting that, after the devolution of
the crown on the Princess Sophia of Hanover, or her
issue, the commissions of judges should })e made qxiam
diu 86 bene gesserint, or during good behaviour, and iixed
salaries be paid to them during their continuance in office ;
but they were to be removable upon an address of both
Houses of Parliament. This enactment was confirmed by
stb 1 Geo, 3, c 23, after a declaration in the king^s speech
at the opening of the session that he looked upon the in-
dependence and uprightness of judges as essential to the
impartial administration of justice, as one of the best
securities for the rights and liberties of the su1)jects, and
as most conducive to the honour of the Crown ; and it
was further provided that the judges should continue in
office notwithstanding a demise of the sovereign.

This change in the status of the common law judges has
made them, as they ought to be when once appointed,
independent of the executive and of politics; but,
notwithstanding their independence was thus secured,
their connection with politics was not finally broken off.
Although they hod been from the earliest times debarred
from sitting in the House of Commons, there was nothing
to prevent their being raised to the peerage and sitting
in the House of Lords. Indeed, this honour has been
usually conferred on the Lord Chief Justice of England,
and it has sometimes been extended to the chiefs of the
two other courts. As members of the Legislature, both
Lord Mansfield and Lord EUenborough, in the early part
of the present century, entered the Cabinet, and became

224 History of the English Institutions

ministers of the Crown. But since the time of the latter,
no instance has occurred of any judge, except the Lord
Chancellor, thus taking part in the executive government ;
and with this one perpetual exception, even if the in-
creased amount of labour attaching to the duties of judicial
and ministerial offices did not render it impossible for the
two to be united in one individual, public opinion at
the present day would not tolerate such a union.

The practice of the Crown consulting the judges and
obtaining extra judicial opinions from them, which before
the Eevolution was carried to most pernicious lengths,
was occasionally resorted to during the last century. But,
although in certain special cases it appears to be not un-
constitutional, it has now been completely abandoned,
recourse being had by the Crown to its law officers, the
attorney-general and solicitor-general, when it desires
advice upon the legality of a proposed measure.

Juries. — Juries, like the judges, have since the Eevo-
lution been free from any coercion on the part of the
Crown. Various regulations as to the mode of summon-
ing them, and other matters concerning them, have since
been made, but the only point which it is here important
to mention is the reduction in the property qualificatioii
required of jurors. At the time of the Eevolution only
freeholders were qualified to act as jurymen, but a few
years afterwards copyholders, and subsequently lease-
holders, where the property was of a certain value, were
rendered admissible, except in cases of high treason ; and
ultimately, in 1825, this exception was swept away, and
the qualification of jurymen for all cases was much re-
duced. At the same time writs of attaint were abolished,
and corrupt jurors and their corrupters were made punish-
able on indictment or ioformation.

Parliament. — The judicial powers of the two Houses'

Judicature 225

of Parliament liad previously to the Revolution become
80 well defined, except Tvith regard to matters affecting
themselves and their own members, that such matters
were almost the only questions upon which a difference
between them and the law courts remained possible.
One of these, in the case of Ashhy v. White, during
Anne's reign, involved a conflict between the House of
Lords, as the highest court of appeal, and the Lower
Honsa It was an action by a burgess of Aylesbury
against the returning ofi&cer for refusing to register his
vote at a parliamentary election; and the majority of
the judges of the King's Bench having held that the
action could not be maintained, the Lords, upon an appeal
to them by writ of error, reversed this decision, and gave
judgment for Ashby. The Commons thereupon passed
resolutions affirming their exclusive right to decide all
matters relating to the election of their members ; but after
the prorogation of Parliament, Ashby proceeded to execu-
tion, and other persons brought similar actions against
the returning of&cer. When Parliament reassembled, the
Commons committed these parties to Newgate as for a
breach of the privileges of the House, and when they
applied to the King's Bench for a Habeas Corpus, the
msgority of the judges considered themselves unable to
grant it against a commitment of the House of Commons.
An appeal on the subject to the Lords by writ of error
was prevented by the Commons resolving to commit the
counsel and attorneys engaged in the application for the
Habeas Corpus, and addressing the queen not to grant the
writ of error.

This conduct of the Lower House led to strong resolu-
tions on the part of the Lords in condemnation of it, and
a fruitless conference took place between the two Houses.
The difficulty was solved, as on other similar occasions, by a

BNC. INST. "fi

226 History of tlie English Iftstitutions

prorogation, upon which the committed persons were, as a
matter of course, set at liberty, as commitments by the
Commojis could not last beyond the end of the session.
The queen announced that she would have granted the
writ of error, but that the prorogation rendered it idle to
do so.

The courts of law distinctly recognised the right oi
the House of Commons to commit in the two famous
cases of Mr Murray and Sir Francis Burdett. The
former of these occurred in 1751. The high bailiff having
complained of Mr Murray for insulting him when in dis-
charge of his duty at the Westminster election, the Com-
mons took upon themselves to hear the parties by counsel,
and, after requiring bail from Murray for his appearance
from time to time, ended by committing him to ^Newgate^
from which the judges refused to release him on a Habeas
Corpus. On being discharged at the end of the session
he was escorted home in triumph amid the applause of
the people, but in the next session was again committed
on the same charge. Again, in 1810, when the Commons
had punished by commitment the publishers of an offen-
sive placard announcing a discussion in a debating society
upon the conduct of two of their members, they ordered
Sir Francis Burdett to the Tower for denouncing the
commitment and denying its legality in an address to Ms
constituents ; and the Courts of King's Bench and Exche-
quer Chamber, and the House of Lords, successively
decided against him in actions which he brought against
the speaker and serjeant-at-arms, to obtain redress for his
imprisonment.

Impeachment. — ^The question, whether proceedings
on an impeachment can continue notwithstanding a proro-
gation or dissolution, in respect of which there had been
a conflict of practice before the Kevolution, was decided

Judicature 227

in the aflfinnative in the famous case of AVarron Iltistings,
which, with the exception of Lord Melville's cjise, is the
last instance of recourse to that mode of proc(;(hire. The
Act of Settlement affirmed what had been clearly laid
down in the case of Lord Danby, that no pardon under
the great seal should be pleadable in bar of an impeach-
ment by the Commons in Parliament.

6. Privy Counoil. — In the year of the Reform Act of
1832 the once dreaded judicial functions of the Privy
Council were partially revived. The loss of judicial power
sustained by the council upon the abolition of the Court of
Star Chamber has been already noticed. That event did
not, however, affect its jurisdiction over colonial causes.
For inasmuch as no tribunal for the ultimate decision of
these causes had ever been constituted by legislation, the
ViTig in council was held to have a final appellate jurisdic-
tion in respect of them, in his general capacity of head of
the judicature and fountain of justice. And when appeals
were presented to him from the colonies, they were usually
heard before a conmiittee of the whole council, who made
a report to the king, and judgment was then given by
him in accordance with the report. The same method
had been occasionally adopted in entertaining and deter-
mining appeals on ecclesiastical and admiralty matters
from the Court of Delegates, notwithstanding the declara-
tion in the Acts of Hen. 8 and Eliz., that the decisions
of that court should be final

The constitution both of the committees of the council
for hearing appeals and of the Court of Delegates being
imsatiBfactory, Lord Brougham, in 1832, procured the
passing of an Act which transferred the right of hearing
and finally deciding appeals in ecclesiastical and marine
matters from the king in chancery (see pp. 214, 5^ \» \3cife

228 History of the English Institutions

king in connciL For the purpose of hearing these appeals, as
well as all colonial and other appeals to the Virig la coun-
cil, a committee was constituted in the following year, to
be called " The Judicial Committee of the Privy Council,"
and to consist of all members of the council who held for
the time being, or had previously held, the office of presi-
dent of the council, or one of the leading judicial offices,
such as Lord Chancellor or chief of a common law court,
and also of two other privy councillors appointed by the
king. The committee were to make a report or recom-
mendation upon the appeals to the king in council for his
decision, as previous committees had done. The king
was also authorised to refer to the Judicial Committee
such other matters as should seem expedient, and they
have accordingly been invested with certain powers in
reference to copyrights and patents. By a later Act,
every archbishop or bishop on the Privy Council was to
be a member of the Judicial Committee, for the purpose
of hearing ecclesiastical appeals; and when these came
before it, at least one archbishop was to be present And
the appointment of salaried members of the committee
was authorised in 1871.

Central Criminal Court. — ^In 1834 a new courts
called the Central Criminal Court, was established for th^
trial of offences committed in London and Middlesex^
and certain portions of Essex, Kent, and Surrey. Th^
judges who usually sit in this court are the common la\^^
judges and the recorder, common serjeant, and judge o
the Sheriffs' Court of London. The establishment o
this court, which may at first sight appear inconsistent^'
with the decentralising policy adopted as to civil matter^-
by the erection of the county courts in recent times^.
was primarily rendered necessary by the enormous growtlp-
of the metropolis and its suburbs.

JudicaUire 229

Probate and Divorce Court, — Up to within a
recent date the ecclesiastical courts possessed exclusive
jurisdiction over testamentary and matrimonial matters,
subject only to the interference of Parliament, which
occasionally granted a divorce between parties by sjiecial
private Act But in 1857 all jurisdiction in th(i8e matters
was transferred to the Crown, and a Court of I^obate and
Divorce was constituted to deal with them.

Parliament. — The conflict between the House of
Commons and the courts of law in the case of iStuchlah
V. Hanaardj has been already noticed (p. 152). In an
action which grew out of it the power of the Lower
House to inflict imprisonment was distinctly recognised.
The action was brought by Stockdale's attorney, Howard,
for assault and wrongful imprisonment, against Mr Gosset,
the serjeant-at-arms, who, by order of the House, had
taken him into custody. The Court of Queen's Bench
decided in Howard's favour, but this decision was reversed
in the Exchequer Chamber, and Baron Parke (afterwards
Lord Wensleydale), in delivering the judgment of the
court, afl&rmed what had before been laid down by Lord
Camden, namely, that "the House of Commons is a
part of the High Court of Parliament, which is, without
question, not merely a superior, but the Supreme Court in
this country, and higher than the ordinary courts of law "
(Gosset V. Howard, in error, 10 Q. B. 456).

The power of punishment has, however, of late been
very sparingly exercised by Parliament. In 1838, for a
much grosser libel on the House of Commons than many
for which members had in former times suffered im})rison-
ment, 0' Council was merely reprimanded in his place in
the House by the Speaker.

Contempt. — ^Akin to the right of Parliament to
punish offences connected with itself is the power, which

230 History of tJie English Ittstitutions

the superior courts of law and equity have always
possessed, of punishing by fine and imprisonment what is
called contempt of court (see p. 45). This oflfence may
he committed either hy disobedience to the orders of the
court, or by speaking or writing in derogation of its
authority, or even by publishing, while a cause is in pro-
gress, comments upon it calculated to prejudice the course
of justice. One of the most notable recent instances of
it occurred in January 1873, in connection with the trial
of the claimant to the Tichbome estates for perjury,
which was then impending.

Supreme Court of Judicature. — ^In 1873 an Act
was passed, which was to come into operation on the 2d
November 1874, and which consolidated, as from that
date, the Court of Chancery, the three common law
courts, the Courts of Probate, Divorce, and Admiralty,
and the London Court of Bankruptcy, into one Supreme
Court of Judicature. This Court was to consist of two
divisions; one of which, called "Her Majesty's High
Court of Justice," was to deal with such matters as would
previously have come before the different courts which
were to be now consolidated, or before the Courts of
Common Pleas of Lancaster and Durham, or the cir-
cuit courts. The old distinctions between the courts
were to be so far maintained, that the High Court of Justice
was to be divided into five divisions, corresponding to and
bearing the names of the consolidated courts (the Court
of Bankruptcy being, however, merged in the Exchequer
division). But all the divisions were to have concurrent
jurisdiction to try any cause brought before them; except
that certain specified matters, which had formerly been
within the exclusive province of one of the old courts,
were by the Act specially assigned to the corresponding
division of the new court. The other division of the

yiidicattirc 231

Snpieme Court was to be called " Her ^fajesty's Court of
Appeal," and was to hear appeals from the decisions of
the High Court of Justice, just as the appellate Courts of
Chanceiy and Common Law, and the Judicial Committee
of Privy Council, had previously heard ai)peal8 in equity,
common law, admiralty, and lunacy matt(^rs. Moreover, to
this division was to be transferred the jurisdiction of the
Stannaries Court (see p. 85), and also that of the Judicial
Committee of Privy Council in ecclesiastical matters,
provision being made for the attendance of some of tlie
aichbishops and bishops as assessors to the judges when
such matters were to be tried. It was further provided,
that the remaining jurisdiction of the Judicial Committee
might, if it seemed expedient, be transferred to the Court
of Appeal There was to be no further appeal from this
new Court of Appeal, either to the House of Lords, Privy
Council, or any other tribunal The Lord Chancellor
and Master of the Eolls, and the three chiefs of the old
common law courts, were to retain their former titles and
precedence; but the other judges were to be called judges
of her Majesty's High Court of Justice, or Lords Justices
of Appeal, according as they were appointed to the first
or second division of the Supreme Court.

The main object of thus consolidating the courts was
to produce a complete fusion between the systems of law
and equity as previously administered in the Common
Law and Chancery Courts respectively, and provisions to
effect this fusion were inserted in the Act; but the mode
in which it was to be carried out, as well as other details
of the practice and procedure in the new court, were left
to be laid down by rules of court to be drawn up by
the Lord Chancellor, Lord Chief Justice, and other judges,
during the interval between the passing of the Act and
its coming into operation. The Act also empowered

232 History of the English Institutions

the queen, by order in council, to establish district
registries throughout the country in connection with the
Supreme Court, and to confer on other inferior courts
a similar jurisdiction in equity and admiralty matters to
that possessed by the county courts. It likewise directed
the appointment of official referees, and enacted that the
court might, under certain circumstances, refer cases to
them or to special referees, and might act upon their
report, instead of deciding the question itseK. Another
alteration consisted in the abolition of the old legal divi-
sion of the year into terms, it being left to the rules of
court to determine the times and duration of the vacations
(36 & 37 Vict. c. 66).

CHAPTER IX.
THE EXECUTIVE.

1. Power of the King. — The executive power of the
Crown has been always more absolute and less subject to
control than its legislative and judicial powers. It has
never, like the judicial functions of the sovereign, been
delegated to distinct bodies, with whose action he has no
right to interfere. The position occupied by subjects
with respect to it has ever been that of counsellors and
agents ; and though the sovereign cannot now put forth
executive power except with their advice, and through
their instrumentality, yet they are absolutely incapable of
exercising it independently of the person who, whether as
king or regent, is for the time being invested with royal
authority. It is the Crown which appoints, and may at
any time dismiss, the officers to whom it entrusts the
administration of state affairs and the command of the
na&omi forces. Through them the sovereign enforces

Tlie Executive 233

the laws, collects and dispenses the pu})lic revenues, regu-
lates the movements of the army and navy, and comniiuii-
cates with foreign nations, entering into treaties and
mftlnTig war and peace. Of course, the extent to which
in these various matters the king directs, or is hiins<.'lf
directed hy the officers who wield his authority, must
depend upon his and their personal character and relative
abilitieSi and will consequently vary from time to time,
and from reign to reign. In eithi^r case, however, his
individual capacities exercise a most im])ortant effect u|>on
the government of the state. The mtignitude of that
e£fect in pre-Norman times may be estimated by the fact,
that an iElfred could save the nation, while an iEtlielred
could reduce it to the verge of ruin.

Control of the Witan. — ^We are told by Tacitus
that the old Teutonic tribes entrusted the administration
of afGurs to their nobles (see p. 2), who, in a small and
compact community, were, of course, able constantly to
meet together Imd carry it on in concert Its transfer
into the hands of the king among the tribes who settled
in Britain is probably due partly to the increase of power
which a victorious military leader would inevitably acquire
on locating his tribe in a new territory after a successful
invasion, and partly to the fact that, when several tribes,
settled over an extensive tract of country, became united
into one kingdom, the constant meeting of the nobility
for the transaction 'of business would be impossible.
They might be convened from time to time for legislation
and judicature, which could be carried on at intervals,
but the daily administration of affairs must be left to the
king and the few permanent counsellors in constant
attendance upon him. Yet we find that during several
of the reigns before the Conquest, the Witan possessed a
considerable share of administrative and executive power.

234 History of tJie English Institutions

They were consulted as to the appointment of bishops,
ealdormen, and other public oflSicers, as to the making of
war or peace, and the management and appropriation of
the f olc-land, or public land. The stronger kings, how-
ever, kept these matters under the control of themselves
and their state ofl&cials. This was particularly the case in
the latter part of the pre-Norman period. It was then
also that, by the distribution of the kingdom among a
small number of eorU or earU appointed by the sove-
reign, a heavy blow was given to local self-government
and a corresponding increase of the central authority
effected.

2. Power of the Eling. — ^After the Conquest the
executive power of the Crown remained theoretically the
same. Everything was still noifiinally transacted by the
king. But practically he was much controlled by his
council and officers of state. That this control was a
reality, and was recognised as such, is evident from the
passage in Bracton, who lived in Hen. 3's reign, in which
he says that the king, besides being subject to God, is
also subject to the law by which he was made king, cmA
to his curia, or court, that is, to the counts and barons,
who, if the king is acting in an unbridled and lawless
manner, ought to put a curb upon him.^ It followed, in
fact, from the ancient and fundamental maxim of our
constitution, "The king can do nd wrong," that when-
ever an injury was committed in the name of the Crown,
the blame of it must rest either with the counsellors who

^ " Rex autem habet superiorem, Deum. Item legem, per qnam
factus est rex. Item Curiam suam, videlicet comites, barones, quia
comites dicuntur quasi socii Regis, et qui habet socium, habet magis-
truiu ; et ideo, si rex fuerit sine freno, i. e., sine lege, debent ei
frnenum ponere, nisi ipsimet fuerint cum rege sine fraeno." — Bracton
Jib. 2, c. 16, § 3.

Tlie Executive 235

acquiesced in it, or mth the ministurs (/.(?., servants) or
agents who carried it into execution.

OfOLoers of State. — The curia wliichBracton descrilK}s
iros, in fact^ the Magnum C&nciliumy which met, as wt;
have seen, at the oftenest, only three times a year. When
it was not conyened, the king had recourse, in the cxercLso
of his executive as well as of his judicial power, to the
aid of his Concilium Ordinarium. The different branches
of administration were entrusted to the different officers
composing this council, who were at first almost all either
lay or spiritual peers. Thus the constable and marshal
attended to military matters, the chamberlain to the
king's private financial concerns, and the chancellor to
questions respecting the grants of the Crown lands. But
the greatest of all the state officers was the chief jus-
tidaiy, who, besides his judicial and financial fxmctions,
was invested with a control over the other officials and
over the general administration of affairs, much the same
as that now exercised by the prime minister. In the
early Norman reigns the chief justiciary also acted as
regent, and represented the king during his frequent
absences abroad. In this capacity the chancellor was
sometimes imited with him, as in Eic. Ts reign, in the
case of William Longchamp, who was deposed from the
office by a convention of the barons. But, in the reign
of Hen. 3, instead of the justiciary assuming the regency
by virtue of hia office, custodes regni were specially
appointed. The power of the justiciary, as organised
and augmented by Eoger bishop of Salisbury, who held
the post under Henry L, at length became so great, that
in Edw. Ts reign it was deemed expedient to abolish the
office (see p. 203). Next in importance to the chief
justiciary stood the chancellor, from the fact of his being
the keeper of the great seal, the impress of which was at

236 History of tfie English Institutiofis

that time required, not only for the grants of Crown lands,
but also for all the king's warrants and orders in afiairs
of state.

Advice of the Great Counoil. — ^But although the
Ordinary Council had acquired the principal share in the
administration of affairs, the Great Council was not un-
frequently consulted when matters of more than ordinary
importance were under consideration. Thus Henry H
consulted his Great Council on the subject of the corona-
tion of his eldest son and the marriage of his daughter,
on the circuits of the judges, on the removal of corrupt
sheriffs and bailiffs and of wardens of castles, on the
resumption of alienated Crown lands, and on the quanel
between Castile and Navarre.

Magna Carta. — Some of the provisions of Magna
Carta imposed a control over the executive powers of the
king. John was made to promise : —

**We will not make justiciaries, constables, sheriffs, orbailifisj
except of such men as know the law of the realm, and are willing
to observe it properly " (c. 45.)

It was also stipulated that immediately after the restowr
tion of peace he should remove aU foreign soldiers from
the kingdom. Moreover, the relations between the
English and the Welsh were made the subject of distinct
declarations, and John was obliged to give an assurance
that he would enter into a treaty with the king of
Scotland.

3. Regencies. — After the loss of the duchy of
Xormandy, the absences of our kings from the country
became less frequent, but circumstances from time to
time still rendered it necessary to appoint a r^ency.
This was done in the form practised by Henry IIL, that
of custodes regni. The Black Prince and his son Eichard

The Executive 237

l)oth held this office while still minors. Ee^eiicies occurred
upon the accessions of Kichard IL and Henry YI. The
proceedings in the last case were more re^ilar tlian on
previous occasions — the Duke of I^edf onl, or, in his absence,
the Duke of Gloucester, being appointed by Parliament
protector and defender of the kingdom and English
Church, and the king^s chief counsellor. The Duke of
York was similarly appointed in 1454, and again in tlie
following year, when Henry VL was deranged in mind.
It seems to have been at this time recognised : (1.) That
the king does not possess any constitutional ])rerugative
of appointing a regent during the minority of his succes-
sor; and, (2.) That neither the heir presumptive nor any
other person is entitled, as of course, to exercise the royal
prerogative during the king's infancy or infirmity, but that
the sole right of determining such persons, and prescrib-
ing the limits of their authority, rests with Parliament.

Ck>]itrol of Parliajnent. — Besides this occasional
control by Parliament over the executive, it was, like the
Great Council, whose place it hatl taken, from time to
time consulted on matters of administration, such as the
question of peace or war. Instances of this occur in
the reigns of Edw. 3 and Hen. 7.

Power of CounciL — On the other hand, the power
of the Ordinary Council was continually on the increase.
In Edw. 2*s reign petitions were presented by Par-
liament to the king avd his council, and in 1341 a
complaint was made by Parliament of its growing influ-
enca A desire to get rid of the control wliicli it was
able to exercise upon the king's proceedings, from the
fact of one of its members having the custody of the
great seal, led Edward I. and his successors to adopt the
practice of issuing writs imder a smaller or privy seal, and
even at times to retain the great seal in their own hands.

238 History of the English Institutions

Hut they were unable to persist long in the latter conise,
and the freedom, which they at first gained by the use of
a privy seal for certain purposes, was soon lost, for this
seal also passed into the custody of a member of the
council, called the Lord Privy Seal This office eventu-
ally attained great importance, since it became gradually
established that the chancellor could not aflfix the great
setd to any document, except under the authority of the
])rivy seid, and therefore with the cognizance of the officer
who had the custody of it. To this authority that of the
royid signet was at one time added, in order to insure
that the proceeding took place with the king's knowledge
and under his sanction. For the sovereign was no longer
an ha])itual attendant at the deliberations of the counciL
lie had originally been always present at its meetings
and all its determinations had been in fact his own,
arrived at with the assistance of his councillors. Bnt from
tlio close of the fourteenth century the ordinary debates
of the council, when there was no special business of
importance to be transacted, were carried on in lus
absence, and his consent to their decisions was given by
means of the royal seals. The power of the council was,
of course, considerably enhanced by this change; and
under the Lancastrian kings it was further expressly ex-
tended by regulations passed in Parliament, and by a
royal ordinance, which required that the consent of the
councU should be given to all grants made by royal writ
or letter. Besides its judicial functions noticed in the
preceding chapter, it had the direction of the finances, of
trade both domestic and foreign, of the fortifications of
the realm, of the preservation of the peace, and of the
relations between the Church and the State, and generally
regulated the administration of public affairs.

Privy Council. — From the reign of Hen. 6 the

Tlu Executive 2$g

right of taking part in the deliberations of the Council,
and of exercising its powers, was withdrawn from the
whole body of persons composing the Ordinary Council,
and became confined to the small number amongst
them who attended regularly, and who ac(£uirc(l the name
of the Privy Council, and absolute secrecy was enjoined
upon these as to what passed at their council board. As
late as Hen. 8's reign, we find ordinary councillors
as distinguished from privy coimcillors, and though the
distinction of name was subsequently abandoned, and all
were in later times termed privy councillors, the real dif-
ference was, as we shall see, revived after the Restora-
tion in another form ; and at the present day the fact of
being appointed a privy coimcillor confers no right on a
person to take part in the proceedings of the coimcil, or
any of its committees, without a summons to do so.

Growing Power of Comznoners. — Another impor-
tant alteration in the balance of the executive power was
at the same time in progress, being nothing less than the
admission of commoners to a share — and eventually a
preponderating share — in the exercise of it Their only
avenue to power had originally been through holy orders,
by elevation to an ecclesiastical peerage. But the gradual
introduction of lay commoners into the king's coimcil
has been already noticed (pp. 177, 8) ; and, though they
naturally at first held a subordinate position in it, their
power speedily increased, either through their own
superior abilities, or through a preference on the part of
the king to entrust authority to a man of humble extrac-
tion without influence or property, who would be entirely
dependent on his favour, and towards whom he could
have no cause for jealousy, rather than to a powerful and
independent noble. Moreover the diminution in the
numbers and power of the nobility during the wars of

240 History of the English Institutions

the Eoses no doubt contributed to this result It is to
be noticed that this growth of the commoners' influence
in the executive was marked, not by their promotion to
higher offices, but by the elevation in point of importance
and authority of the offices which they originally filled.
Thus the secretary (for there was at first only one officer
of that name) was in old times merely the king's clerk,
possessing no political influence unless he chanced to be
one of the counciL After a time two were appointed, and
the dignity of the office increased. Beckington, secretary
under Henry VI., was a diplomatist of considerable repu-
tation. In the folio wiug reign mauy bills and warrants
were made to pass through the secretary's hand& Dr
Fox, one of Henry VIL's secretaries, became Bishop of
Exeter, and to his successor in the secretariate was
entrusted the duty of signing a treaty with Portugal.
In Hen. 8's reign the office was held by Cromwell,
before he was advanced to be Lord Privy Seal ; and the
chief secretary became ex offlcio a member of the Privy
Council, and ranked as a baron of the realm, taking pre-
cedence, if he was himself a baron or bishop, of the o&er
peers of the same rank.

4. Ecclesiastical Supremacy. — The kings of Eng-
land, with few exceptions, had, in every age, more or less
successfully asserted the independence of this country and
its Church as against the see of Eome. But the final
acquisition by them of that control over English ecclesi-
astical affiairs, for which the Papal Court had long
struggled, took place at the Eeformation. The assumption
of ecclesiastical supremacy by Henry VIII. involved tho
xecognition of the sovereign as head of the Church, not only
in matten of legislation and judicature (see pp. 191, 214),
bat also in reference to the appointment of Church

Tlu Executive 241

officers, and the exercise of administrative functions by
them. The nomination of the bishops and deans of the
English Church has, since 1533, except during Mary's
reign, rested exdusively with the sovereign ; but, when
once appointed, the sacred character of their office preserves
them from being removed, like the holders of state oificeu,
at the will of the sovereign. The ecclesiastical supremacy
of the Crown was at one time delegated by Henry VIII.
to Cromwell, whom he appointed his vicegerent to ad-
minister aU matters connected with the church. The supre-
macy was entirely renounced by Mary, but was resumed by
Elizabeth upon her accession. The Crown does not in
general interfere in the administration of Church affairs ;
but the sovereign in council has the power, which is
exercised on extraordinary occasions, of prescribing tlie
observance of days of national fasting and thanksgiving,
the use of special forms of prayer, and other matters of
ecclesiastical detail; and the whole of the episcopal,
cathedral, and other landed property of the Church is now
vested in a body of ecclesiastical commissioners constituted
in 1836; and consisting of the archbishops and bishops, and
certain ministers of state and judges (provided they belong
to the Church of England), as ex offijcio members, and
other persons from time to time nominated by the Crown.
These commissioners dispense the revenues of the property
entmsted to them under the sanction and control of the
queen in council.

Power of the Crown in Civil Matters. — In state
af&drs the Tudor and Stuart monarchs recovered and
retained in their own hands much of that administrative
and executive authority which the Council had wrested
from their predecessors. The sovereign resumed his place
at the meetings of the council, and James I. even assisted
at the exercise of its judicial functions in its Court of

BNC. INST. O.

242 History of tfte English Institutions

Star Chamber. The name of the council was still
associated with that of the king in the government of the
State ; but, instead of this being carried on almost entirely
by that body as a whole, the various branches of it were
for the most part directed by the king himself through
his ministers — the members of the council holding offices
of state — each of whom thenceforth was occupied with
his own department, and interfered comparatively little
with those of his colleagues. In Edw. 6*s time the
council was divided into five committees, to which
separate functions were assigned ; and Elizabeth carried
on the government mainly through her secretaries, or
Secretaries of State, as they were now called in reference
to the increased importance of their office.

Control of Parliament. — The struggle between the
first two Stuarts and the Parliament, which was for a
long time mainly confined to the regions of legislation,
judicature, and taxation, was ultimately extended to the
domain of the executive, and the determination of Par-
liament to obtain the control of the militia was the imme-
diate cause of the civil war. Previously to this, however,
the power of the Crown to grant monopolies had been
restrained (see p. 33), its right to billet soldiers on the
people, and to inflict arbitrary imprisonment, had been
repudiated, and Parliament had begun to exercise an
indirect but effectual control over the general government
of the country, by refusing or stinting the supplies so
long as measures which it disapproved were persisted in.
After the Restoration, the right of the Crown to have the
command of the militia, and of the other naval and
military forces, and the fortresses of the kingdom, was
reaffirmed (see p. 37), and the executive power of the
sovereign was in other respects reinstated. Parliament
remained, as it had been before the commencement of the

The Executive 243

contest, destitute of any direct control over a single
department of the state. The two Houses might pans
resolutions and present addresses to the Crown, expressive
of their opinion upon matters of admiDistratiou, and the
risk of impeachment was incurred by an officer of the
Crown who acted in those matters in such a manner us to
call for the condemnation of Parliament; but this body
continued unable to give an order or direction to the very
lowest of the executive officers of the kint'dom in reference
to the discharge of his duties.

Cabinet Oouncil. — A considerable change in the
method of our administration does, however, date from
soon after the Eestoration ; but it was initiated by the
king himself. The abolition of the Court of Star Chamber
had destroyed the overweening judicial power of the
Privy Council, and Charles II., while he increased its
members, at the same time virtually deprived it of its
political power. Notwithstanding the separation of the
aiiairs of state into different departments as already
noticed, many matters had still been brought before the
whole body; but Charles, from his personal dislike of
long debates, and from the feeling that the deliberations
of a large body were not conducive to secrecy or despatch,
abstained more and more from calling it together, and
acted with the advice of a smaller number of counsellors
instead. The previous existence of committees of the
council for various branches of administration (see p. 1 78)
constituted a precedent for the formation of this select
body, though not for the transfer to it of all the functions
of the council. It received the title of Cabinet Council,
a designation not entirely unknown in Cha. Ts reign;
and though, when composed of the five unprincipled
politicians,^ from the initials of whose names it was
^ Clifford, Ashley, Buckingham, Arlington, and Lauderdale.

244 History of tlie English InstittUions

called the Cabal,^ it fell into disrepute, and an attempt was
made to reinstate the whole Privy Council in its former
position, yet this attempt proved a failure, and the Cabinet
has ever since directed the government of the country.

Political Parties. — While the instrument for the
future administration of afiPairs was being thus 'flEishioned,
the two political parties, through the conflict of which
Parliament was destined to exercise a control over the
executive, were also gradually assuming shape. The
germs of party first appeared in the reign of Eliz., when
the Puritan members of the Lower House began to
array themselves in opposition to the exercise of the
queen's prerogatives in ecclesiastical and civil matters.
In the reigns of Ja. 1 and Cha. 1 this opposition
assumed a more definite shape — the members who took
part in it being called the country party, as opposed to
the court party. The former party, after trinmphing
during the Commonwealth, was almost annihilated- at the
Restoration ; but it revived again in the contest upon the
Exclusion Bill in 1679-80 (see p. 133), a contest which
gave rise to the abiding names of Whig and Tory. The
supporters of the Duke of York were called Tories, after
a gang of Irish Eoman Catholic freebooters, while the
country party obtained the soubriquet of Whigs, either
from a Scotch word denoting sour whey, or from the name
applied to the Scottish Covenanters who made a raid npon
Edinburgh in 1648.

6. The Ministry. — ^The two reigns which immedi-
atety followed the Revolution witnessed the amalgamation
of the members of the Cabinet and the subordinate
officers who wielded the executive power into a ministry,

^ The word cabal, however, with the meaning of "dub" or
" coalition," had akeady existed in the English language.

TIu Executive 245

united among themselves, and rosponsil)lc to Parliament.
The formation of such a ministry was tho natural, though
not the immediate result of the division of the country
and Parliament into the two political parties of Whigs and
Tories. Up to the year 1693, William III., from a desire
to conciliate both these parties, distributed the princi-
pal offices of state with tolerable equality between them.
Hence there was, of course, no unity of opinion or of
purpose among the holders of these offices. Each dis-
charged his own duties independently of and often in
opposition to his colleagues. The king and Parliament
were alike distracted by the cross-counsels and cross-
action of those who constitutionally represented the
Crown, and were responsible for its proceedings. Tlie
only remedy for this state of things evidently lay in
committing all the offices of government to men of the
same general pohtics, who would act harmoniously to-
gether in all important matters. Accordingly, between
1693 and 1696 the offices held by Tories were almost all
transferred to Whigs. At the same time the Whig
leaders were united together in a manner so unusual at
that period, as >to acquire for them the nickname of " The
Junto," and the party followed their guidance in a
manner which was then equally unprecedented. More-
over the election of 1695 put this party in a decided
majority in the House of Commons. Again, the death
of Mary in the same year necessitated the appointment,
during William's subsequent foreign expeditions, of a
Council of Regency, under the name of Lords Justices,
and, with the exception of the Archbishop of Canterbury,
composed entirely of officers of state, who were thus
directly led to act in concert. These various accidental
rather than premeditated causes combined to bring about
during the years 1695-1698 something of the modem

246 History of i/ie English Institutions

ministerial form of government. But the system was as
yet by no means thoroughly settled. Thus the ministry
continued in office notwithstanding that the election of
1698 destroyed their majority in the Lower House, and
that Montague, who was their chief representative in that
House, and, according to modem ideas, would have been
styled and considered leader of the House, thenceforth
completely lost control over it. The old state of things
consequently returned, and lasted tiU 1705, when a
Whig Parliament was again elected. Moreover William
III., who was the ablest statesman of his day, was his
own minister for foreign affairs, and in person con-
ducted negotiations with other nations as well as com-
manded armies in the field. And clauses were even
inserted in the Act of Settlement of 1700 (12 & 13
Will. 3, c. 2), providing that, after the accession of the
house of Brunswick, all matters relating to the Grovem-
ment, which were cognisable in the Privy Coimcil, should
be transacted there, and that no person holding an office or
place of profit under the king, or receiving a pension from
the Crown, should sit in the House of Commons. These
clauses were calculated to destroy the institution of the
Cabinet and ministry, and completely to sever the connec-
tion between Parliament and the executive; but they were
repealed in Anne's reign before they came into operation.
After the death of WiUiam there followed a succession
of three sovereigns, who, while endowed with only
moderate capacities themselves — the last two being, more-
over, imperfectly acquainted with the English constitu-
tion, manners, and language — were at the same time
served by ministers of remarkable ability. During their
reigns the ministerial system was gradually developed,
and the real government of the country became finally
efl trusted to the body of state officials with whom it now

The Executive 247

tests, but who, as a body, have no legally recognised
position in our institutions. Under the system thus
established, ministers are equally responsible to the
Crown and to the country.* If their policy in either
domestic or foreign affairs is persistently opposed by the
king, they must abandon it or throw up their seals of
office. They are equally bound to resign if their action
in any important particular is condemned by the voice of
the country as uttered in Parliament. It is unnecessary
to specify any of the numerous cases in which a change
of ministry has occurred from the latter cause. As an
instance of the retirement of a minister owing to a want
of harmony with the sovereign, may be mentioned that of
Mr Pitt in 1801, after holding office for seventeen years,
in consequence of the irreconcUeable opposition of George
III. to the admission of Eoman Catholics to Parliament,

* The English ministry is thus described by Macaulay (Hist, of
Engl. ch. XX.) : — " The ministry is, in fact, a committee of leading
members of the two Houses. It is nominated by the ('rown, but it
consists exclusiTely of statesmen whose opinions on the pressing
questions of the time agree, in the main, with the opinions of the
majority of the House of Commons. Among the members of this
committee are distributed the great departments of the administration.
Each minister conducts the ordinary business of his own office without
reference to his colleagues. But the most important business of ever}*
office, and especially such business as is likely to be the subject of
discussion in Parliament, is brought under the consideration of the
whole ministry. In Parliament the ministers are bound to act as one
man on all questions relating to the executive government. If one of
them dissents from the rest on a question too important to admit of
compromise, it is his duty to retire. While the ministers retain tlie
confidence of the Parliamentary majority, that majority supports them
against opposition, and rejects every motion which reflects on them,
or is likely to embarrass them. If they forfeit that confidence, if
the Parliamentary majority is dissatisfied with the way in which
patronage is distributed, with the way in which the prerogative of
mercy is used, with the conduct of foreign affairs, with the conduct of

a war, the remedy is simple They have merely to declare that

they have ceased to trust the ministry, and to ask for a ministry
which they can trust."

248 History of the English Institutions

and removal from them of other disabilities, which he
was desirous to effect. Theoretically this double responsi-
bility of the ministry might lead to a dead lock in
Government, if king and people stubbornly adhered to
opposite views upon an important question, as the exist-
ence of a ministry would then become impossible; but
this flaw in the system — a flaw which must at some point
or other exist in all forms of limited monarchy — ^has
practically never caused serious inconvenience ; for upon
aU such questions, when the desire of the people has
been unequivocally and persistently expressed, the sove-
reign has ultimately given way, content, perhaps, with
exercising, unknown to the public, a predominant in-
fluence over the counsels of the Cabinet on matters about
which the country at large has felt no interest, or has not
pronounced a distinct opinion. Meanwhile this state of
things has materially increased the safety both of the
Crown and of its ministers. It had always been a maxim
of our constitution that " the king can do no wrong," and
that his advisers are answerable for illegal or improper
acts on the part of the Crown. Yet before the institution
of ministerial responsibility, not only was Strafford be-
headed. Clarendon banished, and Danby and other
ministers disgraced, imprisoned, and attainted, but even
Charles I. lost his head and James II. his throne. Now,
however, when the conduct of the executive is in conflict
with the will of the nation, a change of dynasty is
unnecessary, for harmony is restored by a change of
ministry instead ; and since ministers are supported
while in office by the majority of the representatives of
the nation, and cease to hold office directly they lose that
confidence, their policy is in some sort the policy of the
nation at large, which the latter can scarcely repudiate
to such an extent as to visit with punishment those who

The Executive 249

have carried it out. Hence, since the cstabliHhment of
the ministerial system, there has been only one instance
of the impeachment of a miniat(jr, namely, that of Lord
Melville in 1805, and even this was for offences not
connected with his political duties as a minister.

Ck>]itrol of Parliajnent. — Besides the indirect con-
trol which Parliament has obtained over the executive
by means of the ministerial system, there are other not
less effectual means of securing that government shall
be carried on in accordance with the wishes of the
country. Foremost among these is the absolute depen-
dence of the executive from year to year on the vote
of Parliament for obtaining the supplies of money neces-
sary for conducting the administration of affairs. This
dependence became more absolute after the Revolution of
1688, in proportion as the expenses of government grew
more heavy, (aee ch. x. p. 282), while the Crown was in
a less advantageous position to meet them from its own
resources, owing to the extent to which William III.
impoverished it by granting away the Crown lands to
favoured subjects. Another check on the executive is
the right acquired by Parliament, as will be noticed in
the next chapter (p. 278), of directing the objects to
vrhich the supplies voted by it shall be applied. Again,
it was laid down by the BUI of Rights, that " the raising
or keeping a standing army within the kingdome in time of
peace, unlesse it be with consent of Parlyament, is against
law \ " and the power of the Crown to maintain a stand-
ing army at home and abroad depends on an Act called
the Mutiny Act, which has been passed annually since
the Revolution, and which enables the Crown to main-
tain martial law and discipline in its land forces during
the ensuing year. And though Parliament remained
unable to dictate as to the administration of affairs pro-

250 History of tlie English Institutions

spectively, it asserted the right of instituting retrospec-
tive inquiries into that administration. Previonalj to
the Eevolution the only mode of conducting such
inquiries had heen hy the impeachment of the minister,
but it was now done by committees appointed by the
two Houses for the purpose — a proceeding which, when
recognised as lawful, necessarily carried with it a right
to examine witnesses, records, and papers. Two pro-
posals were made soon after the Eevolution with a view
to a more direct parliamentary control over the executive :
the one in 1692, for a committee of both Houses to con-
sider the state of the nation, and advise the king respect-
iag it ; and the other, for the nomination by Parliament
of a Council of Trade. But neither of them was ever
carried into effect.

Increased Power of Executive. — ^The various
means which Parliament, and through it the nation, thus
possessed of regulating the course of government, enabled
large additions to be made to the power of the executive,
without any danger to the liberties of the country. The
first two Georges, being themselves foreigners, and having
their interest centered in the affairs of Hanover, exercised
little personal influence in English politics ; and during
their reigns the Whig party, which was then in the
ascendancy, fostered the consolidation and growth of
the authority of the Crown, wielded, as that authority
then was, by ministers who were supplied from its own
itmks, and who, not trusting for support solely to their
political principles and the merits of their measures,
largely resorted to bribes from the public money for
the purpose of retaining for themselves the approval of
the House of Commons. Greatly increased powers were
given to the executive in the matter of taxation, especially
in the department of excise. The revenue officers were

w

Tlie Executive 25 1

entrasted with a large and arbitrary authority as to
collecting the duties and searching for evasions of them,
and difficulties were thrown in the way of obtaining
redress in case of an illegal stretch of their authority ;
while, on the other hand, persons accused by thorn of
breaches of the revenue laws were placed under a dis-
advantage, by the fact that such accusations were made
cognisable by commissioners or magistrates, instead of by
a jury, and that less accurate proof of their guilt was
required than in ordinary criminal or penal proceedings.
Another important measure for strengthening the execu-
tive was the Riot Act (1 Geo. 1, st. 2, c. 5) which
imposed the penalty of death, without benefit of clergy,
on any persons who, to the number of twelve or more,
continued together in an unlawful and tumultuous manner
for one hour after being required to disperse by pro-
clamation made in the king's name by a sheriff, mayor,
justice, or other officer. Moreover, in 1718, a power to
inflict death on members of the regular forces for mutiny
or desertion was inserted in the Mutiny Act, and has
been since annually renewed. Another clause repeated
every year in that Act has effected the suspension of
what was considered in Cha. l.'s time as one of the
fundamental liberties of Englishmen, their exemption
from having soldiers billeted upon them against their
will, 1^ authorises the billeting of soldiers on innkeepers
and victuallers.

Personal influence of the Sovereign. — The per-
sonal influence of the sovereign over the administration
of affairs was considerably weakened at the Eevolution,
and, as has been already remarked, was little exercised
by the first two Georges. At the commencement of
G^o. l.'s reign, owing to that king's ignorance of the
English language, the practice was begun, which has

252 History of tlie English Instittitions

prevailed ever since, of the Cabinet Councils being held,
like the meetings of the Privy Council in old time (see
p. 238), without the presence of the king. But though
weakened, the sovereign's influence was yet iai from
annihilated. Even in Geo. 2's reign, it was manifested
in the continued prosecution of the war of 1743 against
the French by two rival ministries, and by the observance
of a general line of policy for the benefit of Hanover ; and
George III., from the very outset of his reign, endeavoured
to reassert it to the full extent which our constitution
would at that time permit. He began by calling into
his confidence an inner knot of counsellors with Lord
Bute at their head, who held their position indepen-
dently of the approval of Parliament or the country,
and supplanted the Cabinet in its relations with the
Crown. Perhaps nothing has more strongly shown
the practical excellence of our system of ministerial
government, than the fact that it was found impossible
long to maintain this irregular state of things. Its
immediate result was the overthrow of the existing minis-
try, and the substitution of the king's real advisers in
their place, thus restoring the constitutional order of
things. But inasmuch as Lord Bute's ministry was
not acceptable to the country, he found the difficulties of
his position so great that he was obliged to resign office
within a twelvemonth ; and though he attempted to re-
sume his unconstitutional position of secret adviser, his
entire dismissal &om court was in a short time forced
upon the king by the very minister who had been ap-
pointed at his instance, and was expected to submit to his
control The inability of the king at this time perma-
nently to commit the government to men of his own
mind who lacked the support of the country, is shown by
the fact that he was reduced, in 1705, to the necessity oi

Tlie Executive 253

acceptiug as premier the Marquis of Eookingham, whom
he had a short time before removed from the lord-lieute-
nancy of a county, and, as a secretary of state and leader
of the mimstry in the Lower House, General Conway,
whom he had once deprived of all civil and military ap-
pointments. But George III. attempted to carry out his
own personal views of government in another manner.
Being unable to dissuade his ministry from proposing the
repeal of the Stamp Act, which they tliought necessary
for the conciliation of the colonies, and not venturing to
dismiss them from his counsels, he brought his iniluenco
to bear against them by causing his private opinions on the
measure to be made known to members of the House of
Commons, who were holding office under the Crown, and
whom he could trust. Hence W£U3 presented the singular
spectacle of office-holders under the Crown voting against
its own ministers. This proceeding led to a resolution of
the House of Commons, affirming that "to report any
opinion, or pretended opinion, of his Majesty, upon any
bill or other proceeding depending in either House of Parlia-
ment, with a viewto influence the votes of members, is a high
crime and misdemeanour, derogatory to the honour of the
Crown, a breach of the fundamental privileges of Parlia-
ment, and subversive of the constitution." George III.,
in fact, keenly watched the debates in Parliament, com-
mented on the silence of those whom he had expected to
.speak, and marked his displeasure at the conduct of mem-
bers in a debate by his behaviour to them at his drawing-
rooms and lev6es, and in the case of one or two officers,
even by passing them over in the order of promotion in
the army. George III.'s personal influence in the man-
agement of public affairs attained its climax during Lord
North's administration (1770-1782). That minister suf-
fered himself to be directed, both in his general policy and

254 History of the English Institutions

in the details of his administiation, by his royal master.
Daring the last five years of his tenure of office he was
personally averse to the continuance of the war in Ame-
rica, but surrendered his own judgment to that of the
king. The king prescribed for his minister the mode in
which the debates should be managed and measures car-
ried in Parliament. He appointed to parliamentary, judi-
cial, and military offices, and granted honours and pen-
sions at his own discretion, and interfered in the affidis
of the army to such an extent as even, on one occasion,
himself to order the marching of troops. In short, there
was at this time too much truth in the complaints of
the opposition, that " his Majesty was his own unadvised
minister." He on miore than one occasion threatened to
abdicate, or appeal to the sword, rather than yield his
convictions, or accept a minister whom he disliked. With
respect to his right of veto, he wrote, in 1774, as follows: —
" I hope the Crown will always be able, in either House
of Parliament, to throw out a Bill; but I shall never con-
sent to use any expression which tends to establish that
at no time the right of the Crown to dissent is to be
used."

But the will of Parliament was destined at length to
prevail. In 1780 the House of Commons passed resolu-
tions, affirming that the influence of the Crown had in*
creased, was increasing, and ought to be diminished, and
that the House of Commons had a right to correct abuses
in the civil list expenditure and every other branch of
the public revenue. Two years later Lord North was
forced to resign office, and the American war was brought
to a close in spite of the wishes of the king ; and the
civil list was dealt with in a manner which will be
noticed in ch. x. (p. 283).

The accession to office of Mr Pitt, in December 1783,

The Executive 253

was the occasion of another struggle between George III.
and the House of Commons. The latter at once, and be-
fore any trial had been made of the policy of the new
mulistem, endeavoured, by votes of want of confidence
and by withholding the supplies, to make their position
untenable in the iBsisting Parliament, and at the same
time to prevent an appeal to the country by a dissolution.
The opposition, which commenced the struggle with an
overwhelming majority, was vanquished by the courage,
abilities, and perseverance of !Mr Pitt. Within four
months after the contest had commenced with a majority
of nearly two to one against ministers, that majority
dwindled down to one. The defeat of the opposition was
then complete ; the supplies were voted, and Parliament
was dissolved. Mr Fox's India Bill was considered by the
country as an audacious attempt to interfere with the pre-
rogatives of the Crown ; and its verdict gave Mr Pitt an
overwhelming majority, which he retained for seventeen
years, and, at the end of that time, went out of office on a
misunderstanding, not with the House of Commons, but
with the king (see p. 247). From the date of Mr Pitt's
triumph, the Crown, for nearly fifty years, continued to
prevail over every other power in the state. The king,
however, was no longer his own minister ; for though he
continued his application to public affairs, and every act
and appointment was submitted to him for his approval,
Mr Pitt was not the man to subject his will to that of
another. And during this period we find the breaking
out of hostilities, and the opening of negotiations for
peace, communicated by the Crown to Parliament, and
frequent motions made in both Houses in fevour of over-
tures for peace, which were successfully rejected by minis-
ters, but were not objected to on constitutional grounds.
We find also clauses inserted in the Militia Acts, provid-

2S6 History of tJie English histitutions

ing that, whenever the king calls out the militia, Parlia-
ment shall, if not sitting, be promptly assembled.

Regencies. — No definite arrangement exists in our
constitution as to the exercise of the executive power
when the king is a minor, or afflicted with mental incapa-
city ; and the prospect or actual occurrence of such an
emergency has, on each occasion, been specially provided
for at the time. Thus, after the death of Frederick Prince
of Wales, the Kegency Act of 1751 directed that, in the
event of the death of George II. during the minority of
the next heir to the throne, the widowed princess should
be regent, with a council of regency, in part named in the
Act, and in part left for nomination by the king, by an in-
strument not to be opened till after his death. Again, the
Regency Act of 1765 empowered George III. to nominate,
by instruments to be kept sealed during his life, one of
the royal family to be the guardian of his successor while
under eighteen, and to exercise royal power as regent
during the same period. It also appointed a council of
regency, and authorised the king to nominate a substitute
in the place of any of its members who might predecease
him, or be appointed the regent. Neither of these Acts,
in the event, came into operation j but in 1788 it became
again necessary to consider the question of a regency,
owing to the king's mental derangement. On this occa-
sion Parliament was obliged to assume some of the royal
functions. The king had become ill during the summer
recess, and it was necessary to dispense with the royal
summons for the meeting of Parliament for dispatch of
business on the day to which it had been prorogued, and
also with the royal license to the Commons to elect a new
speaker in the place of the speaker who had died during
the crisis, and with the king's approval of their choice.
Moreover, as Parliament was not yet formally opened.

Tlie Executive 257

the two Houses Toted that the great seal should be
affixed to a commission for opening it — a proceeding
which, properly speaking, required the direction and
fldgnature of the king. It had been intended to get
over by a similar formality the impossibility of duly ob-
taining the royal assent to a bill for the appointment of a
regency ; but owing to the disputes between ministers on
the one hand and the Prince of Wales (the intended
regent) and the opposition on the other, as to the limits
to be imposed on the regent's power, the Lill was still
under discussion when the king recovered. The delega-
tion of the royal authority was, however, only postponeil
for a time. In 1810 the king became permanently de-
ranged in mind, and, as on the previous occasion, a com-
xnission under the great seal for opening Parliament was
issued by authority of the two Houses. By the same
autliority letters-patent under the great seal were issued
for giving the royal assent to a Eegency Bill, which vested
the royal authority in the Prince of Wales, subject to
certain restrictions as to his power of granting peerages,
offices, and pensions. Before this Bill was passed, the
OKigencies of the public service required the two houses
to assume another executive function, and to order the
officers of the Exchequer to pay out certain sums which
had been appropriated for the army and navy, but for the
issue of which a warrant by authority of the king under
the privy seal was legally requisite.

Another Regency Act, to provide for the event of a
minority, was passed soon after the accession of William IV.,
and a third in Queen Victoria's reign, after her Majesty's
marriage. Before that event, the fact that the king of
Hanover was heir-presumptive to the throne led to an
Act providing for the administration of the government
by Lords Justices until the arrival of the queen's succe ssor,

BNG.INST. R

258 History of the English Institutions

in case lie sliould be ont of the realm at the time of her
decease. All these Acts happily proved imnecessary.

Substitution for Bojal Sign-Manual. — In the
last year of Geo. 4's reign there occurred a delegation
of royal power of a more, restricted and less important
kind than those which had been necessary in the preced-
ing reign. Owing to the difficulty and pain which the
king experienced in affixing his signature to documents
for which it was required, an Act was passed em-
powering him, during the current session, to appoint one
or more persons to affix in his presence, and luider lus
oral direction, the royal signature by means of a stamp.
This proceeding had been occasionally adopted by former
kings of their own accord, as, for instance, by Henry
VIII. and the two succeeding sovereigns; and William
III. on his deathbed affixed a stamp to a commission for
signifying the royal assent to certain Bills. But a Bill
for the attainder of the Duke of Norfolk, having received
the royal assent under a commission to which Heniy
VIII.'s signature was given by a stamp affixed, not by him-
self, but by a clerk, was on that account declared invalid by
Parliament. And when the occasion for using a stamp
arose in Geo. 4*s reign, it was considered that such a
course would be illegal unless expressly sanctioned by the
Legislature.

6. Personal Influence of the Sovereign. — ^The

sovereigns who have reigned since George III. have not,
as a rule, openly taken the same prominent part in the
executive administration which he did. But apart from
the general personal influence, which they have exercised
in their conferences with their ministers on the various
affairs of state, and the extent of which can, of course, be
known only to the ministers themselves, instances have not

The Executive 259

been wanting in which their personal attitude has ayoweclly
affected the goyemment of the country. In 1834, William
lY., of his own motion, dismissed the Whig ministry of
Lord Melbourne, which at that time enjoyed the con-
fidence of the House of Commons, and took Sir Robert
Peel into his counsels. The king was, however, only able
for a few months to maintain his own inclinations in
opposition to the will of the nation ; for Sir Eobert Peel,
after in vain appealing to the country for support by a
dissolution and general election, found it impossible to
retain office in the face of a hostile House of Commons,
and William was obliged to recall his former ministers.
The personal influence of the sovereign, which had been
favourable to Sir Eobert Peel on that occasion, became at
the commencement of Queen Victoria's reign the cause
of his exclusion from office for two years. Owing to Lord
Melbourne having been in office at the accession of Her
Mi^esty, nearly all the ladies of the royal household were
closely related to his ministers and chief political sup-
porters. When his ministry, whose unpopularity had
been growing since 1835, felt it expedient to resign in
1839, Sir Eobert Peel, to whom the formation of a new
ministry was entrusted, represented to the queen that he
could not undertake the task unless he was permitted to
make some changes in the royal household, by which her
Majesty would cease to be surrounded by ladies intimately
connected with his political opponents. As this was
not accorded to him he declined to accept office, and
Lord Melbourne's administration was reinstated, until
being, in 1841, in a minority in the House of Commons
and in the constituencies, they again resigned. On this
occasion Sir Eobert Peel, in arranging the new ministry,
was allowed to make the necessary changes in the royal
household; and the removal from it, on a change of

26o History of the English Institutions

ministry, of those ladies who are connected with the
outgoing ministers, has ever since been the established
practice. The importance which Sir Eobert Peel attached
to this matter is an indication of the extent to which he
was sensible that the personal inclinations of the sovereign
influence the course of public affairs, so that he felt it
impossible to hold office while those inclinations were
liable to be biassed by others in a direction adverse to his
own policy.

A memorandum given by the queen to Lord Pal-
merston when secretary of state for foreign affairs in
1850, indicates the personal share which the sovereign
takes in that branch of the public business. It required
him to state distinctly what he proposed in a given case,
in order that the queen might know to what she was
giving her sanction. Any alteration of a measure after
that sanction was given would be a breach of sincerity to
the Crown, and be justly visited by the exercise of the
sovereign's constitutional right of dismissal. The queen was
to be informed of communications between him and foreign
ministers; was to receive the despatches in good time,
and be furnished with the drafts for her approval in suf-
ficient time to make herself acquainted with their contents
before they were sent off.^

Ministers. — The constitutional right of the Crown to
dismiss its ministers, referred to in the queen's memor-
andum, enables the prime minister and the Cabinet as
a whole to exercise, through the Crown, a check upon
and control over each individual minister in the depart-
ment of which he is the special head. Thus, in the very
year after the memorandum was written, Lord Palmerston
was removed from his office in Lord John Eussell's govern-
ment, owing to his having adopted a tone towards the
^ See Hansard's ParliamexitaTy I>e;\^QA.eft, Sd series, vol. cxix. p. 90.

The Executive 26 1

French Grovemment wliich the prime minister considered
to be inconsistent with the policy detennined upon by
the Cabinet

The composition of the Cabinet has slightly varied
from time to time, both before and since 1832 ; for since,
as has been observed, the body has no legal existence, its
constitution depends on the will of the Crown, that is,
practically, of the prime minister. It has been the in-
variable practice that the following ministers should be
members of it : — ^The Prime Minister, as First Lord of the
Treasury, the Lord Chancellor, Lord President of the
Council, Lord Privy Seal, and ChanceUor of the Exche-
quer; and the Secretaries of State — of whom there are
now five — ^for the Home Department, Foreign Affairs,
War, Colonies, and India. In addition to these, from
^^ to eight of the other ministers are usually admitted
into it. In 1872 the following six had seats in it — the
First Lord of the Admiralty, President of the Board of
Trade, Chief-Secretary for Ireland, Yice-President of the
Committee of Council on Education, President of the
Local Government Board, and Chancellor of the Dachy
of Lancaster. The ministry in that year comprised, in
addition to the members of the Cabinet, the First Com-
missioner of Works and Public Buildings, the Postmaster-
General, Attorney-General, and Solicitor-General, two
janior Lords and two Secretaries of the Treasury, and
two junior Lords and one Secretary of the Admiralty;
also the Lord Steward, Lord Chamberlain, Earl Marshal,
Uaster of the Horse, and Commander-in-Chief, the last of
whom holds office permanently, and is independent of
changes in the ministry ; besides under-secretaries of the
diiSerent departments, and special officials for Scotland
and Ireland.

The ministers sirGy as a rule, all of fti^m Tuerc^o.^c^ q>^

262 History oftlu English Institutions

one House of Parliament or the other, though, of course,
there is no legal necessity for their being so. On the
other hand, certain restrictions exist as to the proportion
of the ministry who can sit in the Lower House. Certain
of the offices — those designated with the prefix " Lord,"
except the Lords of the Treasury and Admiralty — are
always held by peers ; and though, as has been already
mentioned (see p. 246), the exclusion of the whole minimi-
try from the Lower House, which was once contemplated,
was never carried into effect, yet until 185^5 only two of
the principal Secretaries of State, and two of the Under
Secretaries could sit in it. In that year the number of
each who were permitted to do so was increased to three ;
and three years later, when the Lidian department was
added to the Government, it was changed to four. But
one principal secretary and one under secretary are still
inadmissible, and are, therefore, always chosen from the
peerage.

Growth of Executive Power. — Complaint has
sometimes been made that the gain which the countiy
received from the Eeform Act of 1832 in a more
adequate representation of the people, has been acquired
at a loss of firmness and stability in the executive
power, owing to the frequent changes of ministry which
have since taken place. It is no doubt true that
the average duration of the Liberal and Conservative
ministries during the forty years since 1832 has been con-
siderably shorter than that of the Whig and Tory admi-
nistrations in the century preceding that year. But
whether the power of the executive has since 1832 been
feebly wielded or not, the gradual augmentation of that
power, which was noticed as in progress from the Revolu-
tion onwards (p. 250), has continued to be uninterruptedly
maintained to the pieaeii^. XiYov^. TVia ^•atablishment of

Tlu Executive 263

the Police and of the central Poor Law and Local Govern-
ment systems, and of the Educational Department, have
been, already mentioned in ch. iii. licsides these,
Taiious powers of control over inland and marine com-
merce, railways and other public modes of locomotion,
merchant shipping, and navigation in general, have been
from time to time, and are still continually, given to the
Committee of the Privy Council known as the Ik^ard of
Trade, while other administrative powers are nominally
eatrusted to the Privy Council as a whole.® The police
are onder the control of the Secretary of State for the
Home Department; and the Local Goveniment Board,
[Education Department, and Board of Trade, are largely
composed of and are presided over by cabinet ministers,
and therefore reflect the policy of the ministry ; while to
the meetings of the Council as a whole, only those Privy
Councillors are summoned who are members of or are in
accord with the ministry for the time being in office. It
is beyond the scope of the present work to do more than
allude to the increase of the executive power wliich re-
salted from the transfer of the government of India from
tiie East India Company to the Crown in 1858, pre-
viously to which year the only means of interference on
the part of the home government with the administration
of Indian affairs had been through the Board of Control
for India, established by Pitt in 1784, and remodelled in
1793.

Military Forces. — Nor is it in civil matters alone
that the power of the central executive has been consoli-
dated and strengthened. In 1871, after a biU had been
introduced for suppressing the purchase of commissions
in the army, but had been thrown out by the House of
Lords, a royal warrant was issued, by the advice of the

• See, for instances of tliis, p. 195.

264 History of tlu English Institutions

ministTT, abolishing the practice; and the crown thus
obtained complete control over the appointment of officers
in the army. This warrant was followed by an Act
which transferred to the sovereign, to be exercised
through the Secretary of State for War and officers ap-
pointed with his advice, all the jurisdiction and com-
mand over the militia, yeomanry, and volunteers, which
had been previously vested in the lord-lieutenants of
counties ; so that the whole of these forces are now
placed under the direct control of the War Office, and
can be arranged and worked in connection with the regu-
lar armv.

CHAPTER X.
TAXATION.

1. Early 'Rnglifih Finance. — Before the Conquest
the ordinaiy public expenditure was met, in tlie first place,
bv the rents of the folc-land, and the liabilitv to which
its holders were subject of assisting in public works, and
providing sustenance for the king and high public officials
during their progresses through the country — a liability
which was ultimately commuted for a fixed money pay-
ment; and in the second place, by the obligation called
the trinoda neeessittUj which lay on the holders of all
lands in the kingdom, except some church lands, and
which consisted of hurhhot^ bn'gbot^ and fyrdy or tho
repair of fortreaseB and of bridges, and military service.
The luMtilitieB with the Danes occasionallv rendered
the fniiheir imposition of the Daneij'^ld, for the
of baying off their incursions or maintaining a
te XMHt them. It was levied in the form of a tax
hyde of land, or of a contribution from

Taxation 265

each shire of a fully equipped ship, and was always
imposed by the authority of the Witenagemot. That
body had also originally a voice in the disposition and
management of the folc-land, but this appears in the
eleventh century to have fallen almost completely under
the control of the king. The king had, besides, an
immemorial right to duties on exports and imports ; but
these duties were at that time of a very trifling amount

2. Feudal Souroes of Revenue. — At the Conquest
none of the old forms of taxation were at once abolished.
The Danegeld, for instance, was occasionally levied down
to 20 Hen. 2. But they were gradually supplanted by
the feudal impositions established by their side, consisting
of the aids and reliefs from barons and military tenants
in capite, as well as an annual tax payable by them, under
the name of scufage or escuage, as a commutation for the
forty days' personal service in the field, which they were
feudally bound to render to the king every year ; and the
annual taxes called hydage and talliage — taxes which
correspond to scutage, but were exacted from the socage
tenants of the king's demesne lands and from the in-
habitants of the royal boroughs. These payments by the
tenants of Crown lands took the place of the old burdens
imposed on the holders of folc-land, which, according to
feudal principles, had become the property of the Crown.
The customs duties on exports and imports gradually
assumed a more prominent place in the revenue, under
the names of tonnage and poundage, and prisage, the latter
term being specially applied to the duty on imported
wines. These duties were, in fact, only part of a
general system, which at this time prevailed, of imposing
tolls or taxes on various transactions of trade ; the right
to levy them being in many places enjoyed by the lord

266 History of the English Institutions

of the manor or district, while in others it belonged to
the king, as was, of course, the case in all the loyal
boroughs, lordships, and demesne lands.

The prerogative of the king to ayail himself of the
property and labour of private individuals for puhUc
purposes, and his right to purveyance, have been already
noticed (ch. ii.).

Crown Lands. — In the confiscations and redistribution
of the soil of the kingdom, which followed the Conquest,
the amount of land reserved in the hands of the king as
royal demesne, popularly known as Crown land, was very
large, and was subject to continual increase through for-
feitures and escheats. On the other hand, grants and
alienations of it were made on the most liberal scale hj
all the early kings, some of whom were so prodigal that
they themselves, or their successors, were obliged arbi-
trarily to resume what they had improvidently parted
with. This policy of abandonment by the Crown of its
landed possessions (which was perpetually persisted in,
and, as we shall see, demanded eventually the restraint
of Parliament) prevented the king from supporting himself
in independence, as he might otherwise have done, upon
the revenues of the Crown lands, and necessitated his appeal
for pecuniary assistance to the people — a result of incalcul-
able constitutional importance to the country, as the needs
of the sovereign were taken advantage of to wring from
him securities for good government and for the liberty of
the subject, to which in many cases he would not have
consented, had not the grant to him of the requisite supply
been made conditional upon his concession of them.

Imposition and Collection of Taxes. — ^As a
matter of policy, the early Norman kings usually con-
sulted their council of barons on the imposition of any
extraordinary aid or tax •, "buX) >i^\^ ^^^«tewx.^ to them was

Taxation 267

little more than a form, for no instance is recorded in
whicli the demand of the king was refused, or even ques-
tioned. The collection of the revenues was distributed
throughout the shires, the sheriff of each shire being
accountable for the amount due from it. The assessment
of this amount, and of the proportions in which it
was chargeable on the different lands, was sometimes
ascertained by the sheriff in the county court, and
sometimes by royal officers sent on circuit through the
country under the direction of the chief justiciary.
These fiscal circuits preceded the circuits for judicial
purposes, for which they no doubt paved the way.
They subsequently became united with the latter, and
were ultimately superseded by them. In addition to
circuits, the collection of the revenue led to the adoption
of another institution, which has become one of the
fundamental elements of our judicial system — that of
trial by jury. In investigating the liability of the
various lands and inhabitants of the county, the sheriff,
or Itinerant officers, as the case might be, were assisted
by chosen men of the neighbourhood sworn to certify-
according to the truth. In the reigns of Hen. 2 and
his sons the levying of taxes became more heavy, and
at the same time more arbitrary. The scatage seems to
have been first levied as a regular tax in 5 Hen. 2, to
defray the cost of the expedition to Toulouse. The scutage,
proving insufficient for the royal needs, was supple-
mented by a tax on all the movables or personal effects
in the kingdom. This tax at first amounted to one-
tenth of the value of the movables, and, being raised
to support the crusade against Saladin, was called the
Saladin tithe. It subsequently became a very usual
mode of raising money, and varied in amount between
one-tenth and one-fifteenth of the vaLu^ oi >i\i.^ Ocl^\j^^

268 History of ttie English Institutions

the latter being the more common proportion. In
Ric. Ts reign, when the expenses of the crusades, and
of providing the king's ransom, required to be met by
extraordinary contributions, a new tax was levied on the
land under the name of carucagey being so much for
each caruca or plough.

Magna Carta. — Both in Eic. I's reign and at the
commencement of the following reign, some feeble opposi-
tion was shown to the increasing exactions to which the
people were subjected ; but it was in. Magna Carta that
the first determined effort was made to restrain extortions
in taxation, and place it under the control of those who
contributed to it. A clause was inserted in that instru-
ment, by which the king bound himself not to impose,
except through the General Council of the realm, any
scutage or aid other than the three recognised feudal aids
— (1), for ransoming the lord's person ; (2), for making
his eldest son a knight ; and, (3), for providing once a
suitable marriage for his daughter ; and these aids were
not to be of an unreasonable amount. Care was taken to
prescribe how the council for purposes of taxation should
be constituted; namely, that the archbishops, bishops,
abbots, counts, and greater barons should be summoned
individually, and a general summons be sent, through
the sheriffs and king's bailiffs, to all the king's tenants in
caplte. These clauses were not, however, confirmed by
Henry III., nor do they appear in subsequent confirmar
tions of the Charter.

Control of the Great Council. — Yet the principle
thus affirmed was, partly no doubt from motives of evi-
dent policy, or even necessity, in many cases observed,
especially in the levying of carucage and the tax on
movables, which were almost invariably voted by the
Great Council -The pivniMy oib^^ct, of summoning the

Taxation 269

commons and clergy to this council was to obtain thoir
consent to taxation — a subject on which, as we saw in
eh. v., they were consulted long before they took
part in legislation. And the right of self-taxation was
recognised to the extent of each class of the community
determining independently of the rest what amount it
would contribute. The lords made a separate grant, the
knights voted their own quota, and the burgesses theirs,
while the clergy decided for themselves the amount of
their taxation. Hence it often happened that the rate of
contribation varied very considerably in the different
classes.

A tax of a fifteenth on movables was frequently ob-
tained by the king in exchange for a confirmation of the
Great Charter and Charter of the Forests, with, from time
to time, certain further concessions. This was the case
in 1297 (25 Edw. 1) when the confirmation of the charters
contained a promise by the king, for himself and his heirs,
that thenceforth no aids, tasks, or prises, beyond the
ancient customary aids and prises, should be taken except
by the common assent of the whole realm, and for the
common profit thereol In the same year the energy of
Hnmfirey Bohun, Earl of Hereford and Essex and Con-
stable of England, and Eoger Bigot, Earl of ^Norfolk and
Suffolk and Marshal of England, also obtained the assent
of the king to the Statute of Tallage, which enacted that
no talliage or aid should be imposed or levied in the realm
without the will and assent of the archbishops, bishops,
earls, barons, knights, burgesses, and other freemen of
the land; that no king's officer should take the com,
leather, cattle, or any other goods of a man without his
will and assent; and that nothing should thenceforth
be taken from sacks of wool under the pretext of xmL^-
iolte.

270 History of tlu English Institutions

3. Control of Parliament. — In the reign of Edw.
3 the drain on the exchequer caused by the wars in
France rendered necessary the imposition of frequent and
heavy taxe& In 8 Edw. 3 an assessment was made of all
the cities, boroughs, and towns of England, and the value
of the tax of the fifteenth on the movables was pe^
manently fixed according to this assessment; so that
from that time forward, whenever fifteenths were voted, as
they continued to be until the end of the sixteenth century,
a definite fixed sum was meant, being the fifteenth of the
value assessed in that year. In 14 Edw. 3 the Lords and
Commons, meaning by the latter the freeholders of the
counties, granted to the king the ninth lamb, the ninth
fleece, and the ninth sheaf for two years. The citizens and
burgesses, at the same time, granted the ninth part of their
goods, and the foreign merchants the fifteenth part of their
goods. But it was expressly stipulated that these grants
should not be taken as a precedent, and that the king's
subjects should not thenceforth be charged to make any
aid, or sustain any burden, except by the common assent
of the prelates, earls, barons, and other great men, and
commons of the realm, and that in Parliament; and that
all the profits arising out of the grant then made, and
from wards and marriages, customs and escheats, and
other profits rising of the said realm of England, should
be put and spent upon the maintenance and the safe-
guard of the said realm, and of the wars in Scotland,
France, and Gascony, and in no places elsewhere during
those wars (14 Edw. 3, st. 2, c. 1). This is the first in-
stance of Parliament assuming any control over the exr
penditure of the revenues. A few years later we find
another instance of this, and also of a grant being made
for a longer period than one year. In 18 Edw. 3 the
Commons alone granted tvjo-^^\.fe^ia.ths of the goods of

Taxation 271

the commonalty, and two-tenths of those of cities and
boroughs, to be paid in two years, " so that the money
levied of the same be dispended on the business shewed
to them in this Parliament by the advice of the great
men thereto assigned; and that the aids beyond Trent
be put in defence of the North" (18 Edw. 3, st. 2, c. 1).
Eighteen years later the grant of a subsidy on wools,
leather, and wool-fells, or woollen cloths, for the unusual
period of three years, was made the occasion of passing an
Act of Parliament to the effect, that after that time
nothing should be taken or demanded of the Commons,
except the ancient custom of half a mark; and that no
subsidy, or other charge, should thenceforth be granted or
imposed upon wools by merchants or others, without the
assent of Parliament. One instance of the appropriation
of the supplies by Parliament occurs in the following
reign, when it was enacted that a subsidy granted on
wool should be wholly applied upon the defence of the
realm of England, and the keeping and governance of the
king^s towns and fortresses beyond the sea, after the good
advice of the lords of the realm, and other wise men of
the king's council (5 Eic. 2, st 2, c. 2).

Taxation of the Clergy. — ^After the cessation of the
dergy to attend Parliament in Edw. 3*s reign, they
continued to tax themselves in Convocation, voting sub-
sidies at the rate of 4s. in the pound, according to the
valuation of their livings in the king's books. The sub-
sidies BO voted were, however, considered to require the
confirmation of Parliament.

Relative Power of the two Houses. — ^After the
withdrawal of the clergy from Parliament, the knights
and burgesses were speedily amalgamated, and voted to-
gether on all questions, including taxation. And aftev
the middle of Edw. 3*s reign, the two "H.o\xaea ^cX«^ \ici^<i-

272 History of t/ie English Institutiofis

ther in the matter, sometimes after joint deliberation.
Thus, in 43 Edw. 3, it is stated that the Lords, with one
assent, and afterwards the Commons, granted a subsidy on
exported wool. In the two following reigns we find re-
citals that the Commons grant, with the assent of the
Lords. As late, however, as Edw. 4*s reign, the Court of
King's Bench laid down that a money grant by the Com-
mons would be binding on commoners without the assent
of the Lords. The grants were originally made in the
shape, not of bills, but of written indentures, tendered to
the king and entered on the EoU of Parliament. Unless
accompanied by some condition or relief of grievances
having the effect of a new law, they do not appear as
statutes till the time of Hen. 8. In the early part of his
reign they are said to be enacted by Parliament alone,
but latterly the king's name is introduced. The preamble,
however, has continued to the present day to be in the
form of an address to the sovereign. With a view to
securing the independence of the two Houses in respect
of the grants solicited from them by the Crown, a promise
was obtained from Henry IV., and recorded on the Kolls of
Parliament, to the effect that no report should be made to
the king of any grant made by the Commons and assented
to by the Lords, or any communications which passed in
reference to such grant, until the Lords and Commons
had come to an agreement about it.

Subsidies. — About the time of Eic. 2 and Hen. 4,
the scutage, hydage, and taUiage gradually fell into disuse,
being replaced by subsidies, which were a tax imposed
upon persons in respect of their reputed estates, after the < j
nominal rate of 4s. in the pound for lands, and Jl^2 oj. in T
the pound for goods — the goods of aliens being liable to
twice that amount.

Increase of TaaLation. — About the same time we

Taxation 273

find a growing liberality on the part of the Lower House
in the grant of sapplies to the Crown. ThiH liberality,
however, was not always responded to by the |)oople at
large, as is shown by the insurrection under Wat Tyler,
occasioned by the extraordinary imposition of the poll
tax in 1381, the rebellion in Yorkshire in 1489, and the
leyolt in 1525. In 1397 a subsidy on wools, leatlicr, and
wool-fells, was granted to Eichard 11. for his life. The
practice of making a grant for the life of the sovereign, of
which this was the first instance, soon became common.
A similar grant was made to Henry Y. in 1415, after the
taking of Harfleur. And from the time of that monarch
till the accession of Charles I., a grant of tonnage and
poundage for the king's life was made in the first Parlia-
ment of every reign.

Loans and Benevolences. — The revenues of the
Crown from the recognised sources not being sufficient to
meet its requirements, other means of raising money were
resorted to by our sovereigns. Eichard II. frequently ex-
torted forced loans from his subjects, and Edward lY. did
the same thing under a different form, by taking what were
nominally benevolences or voluntary gifts instead. These
were abrogated by Parliament in Eic. 3's reign, but were
renewed by Henry YII., in whose reign they received the
sanction of the Legislature.

4. Reigns of Elizabeth and James I. — Until
towards the end of Eliz.'s reign the supply voted for
any one year by the Commons never exceeded one sub-
sidy on lands and two fifteenths on goods, while that
granted by the clergy was limited to one subsidy. The
fifteenth had, as we have seen, been a stereotyped sum
nince 8 Edw. 3, and the value of the subsidy had also
become fixed ; so that while money was depreciated, and

BKCw IMST. S

274 History of the English Institutions

land and other property rose in pecuniary value, the yield
of the lay subsidy remained at .£70,000, and that of the
clerical subsidy at .£20,000. These sums became under
the altered circumstances inadequate to meet the public
expenditure ; and in 1588, on the occasion of the Spanish
Armada, the Commons for the first time voted two sub-
sidies and four fifteenths. From that time onwards the
number of subsidies and fifteenths voted became larger.
The amount which they produced was, however, still
insufficient to meet the necessities of the Crown, and
throughout Eliz.'8 reign the practice of raising loans
by circular letters or privy seals was resorted to, but
they were always punctually repaid, James I. had
recourse, for the purpose of replenishing his exchequer, to
the sale of peerages and the new order of baronetcies,
and also of monopolies and exemptions j&om penalties,
until these were declared illegal in 1624. He also, of
his own authority, imposed arbitrary duties on articles of
commerce, and his right to do so, being called in question,
was upheld in courts of law.

Post-Offioe. — The establishment of the post office
dates from Ja. Ts reign; but a regular postal service
was first set up under the Commonwealth, and was per-
petuated after the Eestoration, with the addition horn
time to time of various improvements and rearrangements

Beign of Charles I. — Charles I., on succeeding to
the throne, laid before his first Parliament an estimate of
£300,000 as the probable cost of preparing a fleet for the
war with Spain ; but the Commons declined to vote him
half that amount. They at the same time further showed
their determination to keep a check upon the king's
revenue, by passing a Bill which granted tonnage and
poundage for two years only, instead of for the king's life,
as was customary. The Bill was in consequence thrown

Taxation 275

out by the Lords. After the dissolution of Parliament,
which immediately followed on these proceedings, Charles,
being in argent want of money for the expenses of the
war, issued commissions for compulsory loans, and levied
the tonnage and poundage as if it had been voted, as well
as other heavy duties on merchandise. And when his
second Parliament was dissolved without having voted any
supplies, he proceeded to issue privy seals for the loan of
money from private persons. Moreover, the impost called
ship-money, for which a precedent was found in the reign
of Eliz., was levied upon all seaports without distinction
for the equipment of a fleet. He went further; for a
proposal having been made in the late Parliament for a
vote of four subsidies, which, however, had never been
seriously entertained, much less voted, Charles caused
them to be levied as if they had been voted. The
disastrous expedition to the Isle of Ehe absorbed the
sums thus raised, and in 1628 the king was forced to
summon his third Parliament. This Parliament presented
to the king the famous Petition of Eight, in which it
was provided that no man should thereafter be compelled
to make or yield any gift, loan, benevolence, tax, or such
like charge, without common consent by Act of Parlia-
ment. The assent of Charles to this petition obtained
for him a vote of the then unprecedently large amount of
five subsidies; but as even this proved inadequate for
his wants, the levy of tonnage and poundage, which
remained unvoted, was continued in defiance of the
petition. And, after the dissolution of Parliament in
1629, all persons possessed of landed property to the
amount of £40 per annum were required to accept the
honour of knighthood, which involved heavy fees to the
Crown, or pay a fine. Moreover, monopolies were revived
in every department of tmde, and were thrown into the

2/6 History of the English Institutions

hands, not of indiTiduals, but of companies. Dispensa-
tions from the penal laws were also again freely sold, and
forced loans were extracted from the occupiers of Crown
lands, for which they were compensated by a confirmation
and extension of their tenure of the land.

Charles at the same time issued a proclamation for the
levying of ship-money, not only on the coast towns, but
throughout the whole of England. This unparalleled
imposition on the inhabitants of the inland counties was
resisted by Hampden, who, on being tried for his refusal
to pay, was condemned by seven out of the twelve common
law judges. The levy of the impost was in consequence
continuied, and a general forced loan was added to it. By
means of the revenues thus iUegally raised Charles was
able to carry on the government for eleven years with-
out summoning Parliament; but they were at length ex-
hausted by the Scotch insurrection, and a Parliament was
convened in the summer of 1640. It was, however,
almost immediately dismissed; and, aided by the £200,000,
for the raising of which he induced his Council of Peers
at York to tax themselves (see p. 143), Charles struggled
on until November in that year, but was then obliged to
convene the Parhament, which proved his last, and is
known as the Long Parliament.

Prom the day of the meeting of this Parliament Charles
was powerless to impose any further illegal taxation upon
the people. By one of its first measures it was declared
and enacted that it was and had been the ancient right
of the subjects of the realm, that no subsidy, custom,
impost, or other charge whatsoever, ought to or might be
laid or imposed upon any merchandise exported or im-
ported by subjects, denizens, or aliens, without common
consent in Parliament (16 Cha. 1, c. 8).

Beign of Charles II. — ^The acquisition by the Com-

Taxation 277

mons of complete control over taxation has from the first
produced an effect quite the reverse of diminishing its
amount. During the Commonwealth the Parliament
imposed heavy and, in some respects, novel burdens on
the people. Shortly after the Eestoration, when all the
oppressive feudal tenures with their incidents, and also
the rights of purveyance and pre-emption, were abolished,
the Commons granted to the king, as a compensation for
the loss of his feudal revenues, an hereditary excise on
beer and some other liquors, after a precedent set in the
time of the Commonwealth, when an excise duty of
double the amount had been levied on the same articles
by ordinance of Parliament. Other excise and customs
duties were added during the king's life, and these duties,
together with the tax of 2s. on every house, called hearth
money, and a few other trifling taxes, and the hereditary
leyenues from the post-office, the Crown lands, and some
other small sources, gave to Charles II. an income of
£1,200,000; being a considerable improvement upon that
which had been eiyoyed by his father, and which,
during the years 1637-41 had not averaged more than
£900,000. The king was at this time obliged to pro-
vide out of the royal revenues not only for his own
personal expenses, but also for the cost of government
and the defence of the realm. The various indirect
modes of taxation, of which mention has just been made,
took the place of subsidies, which were discontinued in
1665. Two years previously the hearth money, which
had at first been imposed annually, was made perpetual,
thus furnishing the first instance of a permanent tax in
this country.

Control of the Gonnnons. — But while the Com-
mons dealt thus liberally with the king, they, during this
reign, successfully asserted their exclusive right to deter-

2/8 History of the English Institutions

mine '^ as to the matter, the measure, and the time " of
every tax imposed on the people. Since the first Parlia-
ment of Charles L the Conmions had omitted the name
of the Lords from the preamble of all money Bills, reciting
the grant as if wholly their own, though of conise in the
enacting part mention of the sovereign and Lords "was
introduced as in other biUs. In the convention Parliar
ment^ and for ten years after the Eestoration, the Lords
made several alterations in money Bills, which were
acquiesced in by the Conmions. But in 1661, the intro-
duction in the Upper House of a Bill for paving the
streets of Westminster gave rise to a question whether
the Lords could initiate a Bill laying a charge npon the
people. And in 1671 their right to make amendments
in money BiUs was successfully disputed by the Commons.
Since that year, whenever the Lords have suggested
amendments in a money Bill which the Lower House
has been disposed to accept, it has invariably thrown out
the amended Bill, and introduced a fresh Bill embodying
the amendments, l^or did the king find the Commons
uniformly compliant in meeting his pecuniary needs. Li
1675 they refused a supply to discharge the anticipations
on his revenue, and in 1677 they declined a further sup-
ply till his Majesty's alliances were made known. In the
next year also they refused the king an additional revenua
In the same reign they began to scrutinize the public
expenditure, and introduced the salutary plan of appro-
priating their grants to particular purposes.

The latter practice dates from 1665, when a proviso was
introduced in an Act for granting £1,250,000 to the king
(17 Cha. 2, c. 1), that the money raised by virtue of that
Act should be applicable only to the purposes of the war.
Two years later was passed an Act which appointed com-
missioneTBy with extensive po^ct^ «a to ^jaditing the public

Taxation 279

accounts, and as to investigating frauds in the expenditure
of public money.

Taxation of the Clergy. — The clergy continued to
tax themselves, by voting subsidies in Convocation, until
1664, when the practice was discontinued by a verbal
agreement between Archbishop Sheldon and Lord Chan-
cellor Clarendon, with the tacit consent of the clergy, who
esteemed it as a boon. In the following year the clergy
were for the first time charged with a tax in common
with the laity, and were expressly exempted from liabi-
lity to vote subsidies in Convocation. Their right to
tax themselves was, however, reserved; but since the
discontinuance of subsidies it has never been exercised.

National Debt. — The reign of Cha. 2 is also re-
markable, from a fiscal point of view, as being the period
of the commencement of a national debt. The profession
of banking had sprung up during the troubles of the civil
war, when large sums of money were deposited for safe
custody in the hands of rich and trustworthy goldsmiths.
This practice was continued after the Eestoration; and
though in 1665 the bankers did not consist of more than
five or six persons, they speedily became of sufficient im-
portance to have extensive monetary dealings with the
exchequer. At the outbreak of the Dutch war in 1672,
after the bankers had advanced a sum of £664,263 to the
nation, payment at the exchequer was stopped ; and in-
stead of repayment of the loan, they were promised interest
upon it at the rate of 6 per cent, per annum. This interest
was paid down to the year 1683, when it was suspended
until Christmas 1705 ; from which time, by an Act of 1 699,
the excise was charged with 3 per cent, interest on the
principal sum of .£1,328,526, redeemable on payment of a
moiety; but no compensation was given for the loss of
arrears of interest

28o History of the English Institutions

Beign of James II. — James II., on comiDg to the
throne, issued a proclamation for the payment of customs,
which had expired at the death of his predecessor — an
illegal proceeding, which was, however, acquiesced in by
the Parliament of 1685. The revenue of this king,
from the same sources as those appointed for that of
Charles II., amounted on the average to £1,500,964.
His demand of .£1,400,000 from the Commons in 1685,
was met by a grant of half that sum only ; but they
imposed certain additional duties for a period of eight
years, which added annually to the royal revenue a sum
of £400,000. The annual expenses of the Crown were at
this time, upon an average, £1,700,000.

5. Control of Gonunons. — The imitation by James
II. of his father's practice of raising money without the
authority of Parliament led to the insertion in the Bill of
Eights of a clause which once more, and for the last time,
laid down the principle " that levying money for or to
the use of the Crowne by pretence of prerogative without
grant of Parlyament for longer time, or in other manner
than the same is or shall be granted, is illegall." !N"ot a
single attempt has since been made to infringe this prin-
ciple, but instances have occasionally occurred of an
interference by the Lords in taxation. In 1701 they
passed a resolution, that whatever ill consequences might
arise from the supplies for the year being so long deferred,
were to be attributed to unnecessary delays of the House
of Commons. In 1763 they opposed the third reading of
the Wines and Cider Duties Bill, and it was observed that
this was the first occasion on which they had been known
to divide upon a money Bill. Moreover they occasionally,
without incurring the animadversion of the Lower House,
lejQciQ^ or postponed "BiWs et£i\i\aR.m^ other subjects

Taxatum 281

incidentally a£fecting supply and taxation. But when, in
1790y they amended a Bill for regulating Warwick Gaol,
which had been sent up to them from the Lower House,
by shifting the proposed rate from the owners to the
occupiers of the land, the Commons in consequence threw
oottheBilL

Upon the whole, however, the exclusive right of tlie
Commons to grant taxes has been admitted since the
Revolution, as existing in the terms in which it has been
defined by Lord Chatham, when he says, " Taxation is no
part of the governing or legislative power. The taxes
are a voluntary gift and grant of the Commons alone. In
legislation the three estates of the realm^ are alike con-
cerned ; but the concurrence of the peers and the Crown
to a tax is only necessary to clothe it with the form of
a law. The gift and grant is of the Commons alone."

The grants of the Commons since the Eevolution have
been founded on annual estimates laid before them on
the responsibility of ministers, and strictly appropriated to
the service of the year. This control over the public
expenditure, while it has given to the Commons a pre-
ponderating power in the state, has made them ever ready
to vote the sums which the Crown through its ministers
has demanded from them. Their conduct in this respect
has furnished a striking contrast to the behaviour of the
House before the Eevolution. It is true that, while
prepared to vote the amount required of them, they have
sometimes refused to sanction the precise mode in which
the ministers of the Crown have proposed that it should
be raised. But the temporary delays in 1701, whicli
have been already noticed, and the attempt to embarrass
Mr Pitt's ministry in 1784, by stopping the supplies, a
course in which they found themselves unable to persist,
' He should have said '' estates of Parliament," see p. 138, note 1.

282 History of the English Instiuuions

constitute the nearest approaches on record since the
Kevolution to a refusal by the Commons to meet the
pecuniary requirements of the executive. The subsequent
enormous increase of the annual expenditure and the
creation of a vast national debt bear witness alike
to the magnitude of the demands made upon them, and
to the readiness with which those demands have been
acceded to.

Public Revenue. — ^The annual revenue of the Crown
in time of peace was fixed after the Eevolution at
£1,200,000, of which one-half was devoted to the main-
tenance of the king's government and the royal family,
or what was afterwards called the civil list, and the other
half to the public expenses and contingent outgoings.
But, in 1697, the Commons resolved that, in acknowledg-
ment of the services done by William to the country, a
sum not exceeding X700,000 should be granted to him
for life for the support of the civil list. The supplies
annually voted during the war which began in 1689 were
about five millions, or more than double the revenue of
James 11. From that time the rate of the annual expen-
diture continued gradually to advance, but the periods of
its chief increase were the American war of independence,
and the great French war.

Civil List. — While the necessities of the country thus
occasioned an augmentation of the national expenditure
for public purposes, the royal civil list was maintained at
£700,000 till the accession of George II. ; but in each of
the two preceding reigns debts of a million were incurred
upon it, which were discharged by Parliament by loans'
charged on the list itself. When George II. came to the
throne, it was arranged that if the hereditary revenues did
not make up the civil list to £800,000 a year. Parliament
should supply the defiLCiency, aiid this it was in fact

Taxation 283

called upon to do. At the commencement of the follow-
ing reign Parliament obtained a still further control over
the appropriation of the revenues, by the agreement of
George III. to accept £800,000, which was afterwards
raised to £900,000, as the amount of his civil list, and
to surrender for lus life the hereditjiry revenues, with the
benefit of any surplus which might arise from them, to be
dealt with by Parliament for public purposes. The
nation profited considerably by this arrangement, notwith-
standing that various public expenses, having no connec-
tion with the king's personal establishment, were from
time to time withdrawn from the civil list and charged on
the general revenues instead, and that the gain to the
nation was to a certain extent dimiuished by the necessity
of periodically defraying debts incurred by the king,
which he was unable to meet out of the appointed civil
list. On one of these occasions in 1782, the expenditure
of the civil list was regulated and considerably curtailed
by Parliament. After surrendering the hereditary revenues,
George III. and his successor still continued to enjoy a
considerable income arising from Admiralty and other
sources, which was wholly beyond the interference of
Parliament. William IV. and Queen Victoria, however,
surrendered not only the hereditary revenues, but also all
these other sources of income; so that Parliament has
now control over all the public revenues of the Crown,
except (if this can be properly termed part of the public
revenues) the income derived from the estates of the
Duchies of Lancaster and Cornwall, which belong to the
sovereign and the Prince of Wales respectively.

Crown Lajids. — Having considered the vast increase
which took place in the public expenditure after the
Revolution, it remains to inquire how this expenditure
was met. Very little towards it was contributed b^ tiva

284 History of t/ie EnglisJi Institutions

Crown lands. The mode in which successive sovereigns
squandered away the knded property of the Crown has
been abeady mentioned. A large portion of that which
had been sold by Charles I. to meet his necessities was
Tntf»vJi>| recovered at the ■ Ro¥olution by annulling the sales, but
only to be again diminished by the prodigal grants of the
last two Stuarts. William IIL in this respect showed no
improvement upon his predecessors, and some of the
grants which he made were recalled by the authority of
Parliament.

At length, at the commencement of Anne's reign, the
small remnants of the landed possessions of the Crown
were effectually preserved for the future by an Act which
prohibited any absolute grants of them, and even pre-
scribed the limits as to length of time, and other con-
ditions, under which they might be let on lease. Since
then the Crown lands have received some additions from
the forfeitures after the rebellions in 1715 and 1745,
and have gradually improved in value with the rest of
the land of the country.

Duties. — During the two reigns which immediately
followed the Eevolution, permanent duties were granted
on salt, paper, and coffee, and stamp duties on various
documents were also imposed. Excise duties, other than
the hereditary duties, were granted during the lives of
William and Mary, while the customs duties were limited
to four years. From this time onwards there was a
gradual multiplication of the customs, excise, and stamp
duties and licenses. While they were all imposed mainly
with a view to meet the expenses of our wars, the customs
duties were also considered to serve the additional purpose
of protecting home manufactures, by laying foreign goods
under a disadvantage in competing with them, and by
checking the withdrawal of la.^ material out of the country.

Taxation 285

As a further artificial stimulus to the industry of the
country, manufactured articles, which, if consumed or
used at home, were subjected to excise duty, were, if
exported, allowed a bounty or a drawback of that duty.
Some idea of the number and complication of these duties
previously to 1787 may be gathered from the fact that
Mr Pitt, in consolidating them during that year, moved
no less than 2537 resolutions on the subject. The
increase of the duties, in addition to its inherent e^ls,
gave rise to a gigantic system of smuggling, which it
required a heavy expenditure to keep in check. Mr Pitt
exerted himself to regulate the duties duriug the first half
of his administration, but the outbreak of the great
French war required their reimposition with double
intensity, and no decided attempt to reduce them was
made until the reign of Queen Victoria.

Direct Taxation. — Soon after the Eevolution, a
considerable falling off in the customs and excise duties
led, in 1690, to a kind of revival of the old subsidies,
in the imposition of an aid or a land-tax of 3s. in the
pound, which was afterwards annually granted together
with a poundage on personal property and on pensions
and official salaries, and was usually at the rate of 4s.
in the pound, until in 1798 it was made perpetuaL Pro-
vision was at the same time made for its redemption by
landowners by payment at once of a lump sum by way of
composition. This arrangement was probably adopted
under the expectation that all owners of land would hasten
to avail themselves of it, and that so the whole land of
the country would in a short time be entirely freed from
the old tax, and be available for the imposition of a
new tax. This expectation was, however, disappointed ;
a large portion of the land-tax of 1798 remains unredeemed,
and is annually paid to this day; and it has therefore

286 History of the English Institutions

never been possible to re-tax those lands which, have
been relieved of it. In addition to the land-tax, a per-
manent tax on houses was imposed in WilL 3's reign,
assessed according to the number of windows in each
house, and this was followed by other assessed taxes
levied on objects or articles of domestic use, such as
servants, horses, dogs, and carriages.

Legacy Duty. — Previously to 1796 a small revenue
had been derived from successions to personal property,
owing to the requirement that stamps should be affixed
to probates of wills, letters of administration, and receipts
for legacies; but in that year Mr Pitt proposed a per-
centage tax on successions to both landed and personal
property. The opposition to the former was so great
that he was obliged to divide the measure into two bills ;
and while he carried the legacy duty or tax on personal
successions, he failed to carry the proposed impost on
successions to landed property.

Income Tax. — In 1797, the financial depression of
the country led to the substitution of a paper currency
for cash payments, which an Act of that year prohibited
the bank from making, except in case of sums below
twenty shillings, and which were not resumed until 1819.
To meet the financial embarreissments, Pitt tripled the
assessed taxes, and in the following year imposed, for the
first time, a uniform tax on all incomes except those
under £200, those below that amount being either sub-
jected to a smaller tax or exempted altogether, according
as they nearly approached that figure or fell far short
of it. The first imposition of the tax was signalised
by voluntary contributions in aid of it by public men
beyond what was legally required them. Thus Pitt, Dundas,
the Speaker, and the two chief justices, subscribed £2000
each during their continuance in office,, and the king

k

Taxation 287

added his name to the sahscription list for £20,000 a-
year. The income tax was removed in 1802, after the
peace of Amiens, but was again imposed under the name
of the property tax in 1803, &om which time it remained
in force until 1816.

Penal Taxation. — In addition to the modes of rais-
ing money abeady enumerated, with which we are familiar
at the present day, other expedients were adopted which
would not now be countenanced. In the early part
of the 18 th century the penal laws against Koman
Catholics were made use of for fiscal purposes. It had
been the practice to insert in the Land Tax Acts a clause
rendering Popish recusants liable to pay at a double rate.
£ut, in addition to this, it was arranged in 1715 that the
two-thirds of the income of their lands, which were by
law forfeitable to the Crown, should be applied towards
the expenses of suppressing the rebellion of that year ;
and in 1722, a direct tax was levied upon all Papists
above the age of 18 possessed of any property, the pay-
ment of which was to secure exemption from all other
forfeitures and penalties. This tax was not, however,
repeated iu subsequent years.

Lotteries. — ^The evil effects of lotteries on public
morality were recognised in an act of 1699, which pro-
hibited them under a heavy penalty, designating them
as public nuisances, and declaring that any licence
to carry them on should be void. But notwithstanding
this enactment, which was enforced by many subsequent
statutes, it was considered expedient to make an excep-
tion for the public service ; and acts authorising the
Treasury to raise specified sums by means of lotteries
were passed year after year until 1823, after which the
practice was discontinued.

National Debt. — But besides the various forms of

288 History of the English Institutions

taxation imposed to meet the cnrrent expenditnie, .it
appeared expedient that, when this was incieased by a
costly war, some portion of it should be spread over a
series of years by contracting a public loan. A precedent
for this had, as has been mentioned (p. 279), been fur-
nished before the Eevolution, and in 1694 the national
debt was commenced in its present form by the raiising of
a loan of £1,200,000, at 8 per cent., the subscribers to
which were incorporated, with special privil^es, as " The
Governor and Company of the Bank of England." The
practice thus .begun was in itself by no means unreason-
able ; for if the interests of the nation imperatively
required a special outlay at a particular crisis, it was isai
that the prosperity of future years, should be called upon
to bear some portion of the outlay, to which it in part
might be said to owe its existence. It was, however, by
no means easy to fix the proportion which in any given
case might thus be fairly charged on posterity ; and, the
precedent having been once set, statesmen were under a
great temptation unduly to defray the expenses of govern-
ment by the pleasant device of a loan, instead of by
imposing an adequate amount of taxation. In the case
of the debt of 1694, Parliament reserved the right to
redeem it at any time after 1705 upon a year's notice;
and upon this being done, the Bank Corporation was to
be dissolved. Instead, however, of this taking place,
additional money was from time to time procured in the
same manner, and the debt which, at the close of Wil-
liam's reign, amoimted to upwards of £16,000,000, was
raised in the following reign to £54,000,000. The
unfunded debt, or that which was borrowed on exchequer
bills and bonds for merely temporary purposes, was
always paid off within a limited time ; and the funded
debt was slightly reduced in Geo. 2's reign, and during

Taxation 289

one or two intervals afterwards. But, upon the whole,
after the accession of Geo. 3, it was rapidly augmented,
£121,000,000 being added to it during the American
War of Independence, and £601,000,000 during the
great French war; at the close of which it stood at
its highest figure, £840,850,491 — involving an annual
charge to the nation of £32,000,000 for interest and
management. Since then it has been gradually reduced,
so that in 1872 it amounted to about £736,000,000.

With a view to a systematic reduction of it, a per-
manent sinking fund of a million a-year was set on foot
by Mr Pitt in 1786, and was for many years adhered to,
even when it was necessary* to borrow the million thus
set aside, and many millions besides. But the futility of
borrowing for the purpose of paying off was recognised in
1829, and the practice was accordingly abandoned. Since
that year the reductions in the debt have been eflectcd
exclusively out of the excess of revenue over expenditure.

6. House of Lords. — ^The last instance of the inter-
ference of the Lords in matters of taxation occurred in
1860, when they rejected a bill for the repeal of the
duties on paper, after bills for the increase of the income
tax and stamp duties, to make up the deficiency which
the repeal would occasion, had actually received the royal
assent. They were fortified in this course by the fact
that the bill had only been carried in the Commons by
a majority of 9, and the Lower House contented itself
with passing resolutions affirming its exclusive right of
granting aids and supplies to the Crown, and its power
to maintain that right inviolate. The proposed repeal
was postponed till the following session, when, in order
to preclude the possibility of a second interference of the
Upper House, the clauses for effecting it were inserted in

ENG. INST. T

290 History oftlte English Institutions

a bill by wbich customs and excise duties were granted
for the year.

Civil Liist. — The annual sum to be paid to Queen
Victoria out of the consolidated fund of the United
Kingdom for the civil list, or, as it was expressed, '' for
the support of her Majesty's household, and of the honour
and dignity of the Crown," was fixed at the commencement
of her reign at £385,000, at which figure it has ever
since remained. Independent annuities have, however,
from time to time been settled upon the Queen's children
as they have attained full age or have married. The
Queen and Prince of Wales have likewise derived a
benefit from the general rise of the value of land, in an
increase of the income which they have respectively
received from the possessions of the Duchy of Lancaster
and Duchy of Cornwall. The annual revenues of the
former amounted in 1872 to about £52,000, giving a net
income of £32,000 after deducting the expenses of
management ; while those of the Duchy of Cornwall were
at the same time about £91,000, which yielded to the
Prince £65,000, after a similar deduction.

Public Expenditure. — !N'otwithstanding the almost
uninterrupted peace which the country has enjoyed since
1832, the public expenditure has latterly increased with
the wealth of the nation and the abundance of money.
Its average annual amount in G«o. 4*s reign was about
55 millions, and during WilL 4's reign it was more than
once reduced below 50 millions. But the increase which
took place in it during the Crimean War (1854—56), has
been very nearly maintained ever since ; the expenditure,
which was 75 J millions in 1855-6, having been only one
million less in 1868-9, when it was swelled by the cost
of the Abyssinian expedition, and five millions less in
1872-3, when there was no special cause for outlay.

Taxatio7i. 291

SoTirces of Revenue. — From the Crown lands
the country at present derives a net annual revenue of
X375,000. The adoption during the last thirty years of
the policy of free trade, instead of that of protection, has
led to the repeal of almost all the customs duties, and a
great reduction in the rate of the remainder. The repeal
of the import duties on com was vehemently opposed as
prejudicial to the agricultural interests of the country, but
was after a considerable struggle effected by Sir Eobert
Peel in 1847. And in 1849 the machinery for collect-
ing the excise and stamp duties was simplified by the
amalgamation of the Commissioners of Excise and Com-
missioners of Stamps and Taxes into one Board of Commis-
sioners of Inland Eevenue. Such has been the enormous
development of our commerce that the few articles — such
as wines, spirits, sugar, tea, and coffee — upon the impor-
tation of which duties on a small scale are still charged,
now yield about £20,000,000, or nearly as large a revenue
as was derived from the 1100 articles charged with duty
in 1842. The number and scale of the excise duties has
also been considerably diminished ; yet in 1872-3, they
produced a revenue of about £26,000,000,^ or nearly
double that which they produced thirty years ago. In
like manner, since the introduction of the penny post
in 1839, at the instance of Mr Kowland Hill, the net
revenue of the Post Office has considerably increased,
being now over 4J millions, instead of under 2 J millions,
notwithstanding that in 1870 the rates of postage
were further lowered. Attached to the Post Office,
the Government has now under its control the entire
telegraphic system of the country, the purchase of
which from the various telegraph companies was sanc-

^ This sum, however, includes the imposts transferred to the excise
in 1869 (see p. 292).

292 History of the English Institutions

tioned by Parliament in 1868. The financial gain to
the country fiom the working of the telegraphs is not at
present large; but the receipt of revenue, both from them
and from the Post Office, is ouly a secondary considera-
tion, and is subordinated to their main object of provid-
ing the public with the cheapest, and at the same time
most efficient means of inter-communication which can be
established.

The income tax, which had been discontinued in 1816,
was reimposed by Sir Eobert Peel in 1842, at the rate of

»

7d. in the pound for a period of three years, on the under-
standing that it was to be remitted at the end of that
period. But it has ever since been continued, though its
amount has varied between 16d. (during the Crimean
war) and 3d., according to the exigencies of the public
service.

In 1853 Mr Gladstone, as Chancellor of the Exche-
quer, succeeded in passing the measure, which Mr Pitt
had failed to carry in 1796, for imposing a tax on succes-
sions to real property, which became thenceforth liable to
duty on the same scale as that which had been paid
since Mr Pitt's time on successions to personal property,
under the name of legacy duty.

Down to 1851 the injurious practice of assessing houses
according to the number of windows or lights had offered
a direct encouragement to bad lighting and bad ventila-
tion, .but it was then abandoned, and the rational method
adopted of taxing houses in proportion to their rental,
those whose rental was below £20 being entirely exempt.

In 1869 Mr Lowe made an important change in the
mode of collecting the imposts in respect of male ser-
vants, carriages, horses, and armorial bearings ; repealing
the assessed taxes previously payable upon them, and
requiring that excise licences should, at the commence-

Taxation 293

ment of every year, be taken out for the use of them
instead.

The present immense material prosperity of the country
is evidenced by the fact that the revenue from the
various sources above enumerated amounted, during the
twelve months ending March 31st, 1873, to £76,008,700,
or five millions more than its amount had been estimated
at in the budget of 1872.

CHRONOLOGICAL TABLE

SHOWING AT INTERVALS THE DATES OP THE SESSIONS OP PAKLIAMKNT ACCOKD
ING TO THE CORRESPONDING YEARS OF THE CHRISTIAN ERA, AND OP THE
REIGNS OP THE ENGLISH SOVEREIGNS, AND THE DATES OF THE COMMENCE-
MENT OP THE REIGNS PROM A.D. iaz6.

1216, Oct. 28,
1286-6,
1267, . .
1272, Nov. 20,
1285, . .

1296, . .

1297, . .
1300, . .
1307, July 8,
1315-6, . .
1326 (7),* Jan.
1336, . .
1344, . .
1367, . .
1863-4, . .
1370-1, . .
1377, June 22,
1881, . .
1388, . .
1399, Sept. 30,
1400-1, . .
1406-6, . .
1412 (3),* Mar.
1420, . .
1422, Sept. 1,
1429, . .
1435, . .
1444-5, . .
1460(1),* Mar.
1472, . .
1483, Apr. 9, .
1483, June 26,
1485, Aug. 22,
1496, . .
1609, Apr. 22,

25

21

4,

Henry III.

20 Hen. 3.

62 Hen. 3.
Edward I.

13 Edw. 1.
23 Edw. 1.
25 Edw. 1.
28 Edw. 1.

Edward II.

9 Edw. 2.

Edward III.

9 Edw. 3.

18 Edw. 3.

31 Edw. 3.

38 Edw. 3.

46 Edw. 3.

Richard II.

5 Ric. 2.

12 Ric. 2.

Henry IV.

2 Hen. 4.

7 Hen. 4.
Henry V.

8 Hen. 5.
Henry VI.

8 Hen. 6.

14 Hen. 6.
23 Hen. 6.

Edward IV.

12 Edw. 4.

Edward V.

Richard III.

Henry VIT.

11 Hen. 7.

Henry VIII.

1612, 4 Hen. 8.

1523, . . . 14 & 16 Hen. 8.
1633-4, .... 25 Hen. 8.
1641, .... 32 Hen. 8.
1646(7),* Jan. 28, Edward VI.
1661-2, ... hh^ Edw. 6.
1563, July 6, . . Mary.

1664-6, . . 1 & 2 Ph. & Mar.

Elizabeth.

6 Eliz.

23 Eliz.

36 Eliz.

43 Eliz.

James I.

3 Ja. 1.

7 Ja. 1.

21 Ja. J.

Charles I.

3 Cha. 1.

16 Cha. 1.
12 Cha. 2.

17 Cha. 2.
22 Cha. 2.
31 Cha. 2.

1668, Nov. 17,
1662-3, . . .
1580-1, . . .
1692-3, . . .
1601, . . .
1602 (3),* Mar. 24
1605-6, . . .
1609-10, . .
1623-4, . . .

1626, Mar. 27,

1627, . . .
1640, . . .
1660, . . .
1665, . . .
1670, . . .
1679, . . .
1684 (6),* Feb. 6, James II.

1688(9),*reb.l3,j^SARY''''
1694, . 6.& 7 Will. & Mar.
1695-6, . . . 7 & 8 Will. 3.
1700-1, . . 12 & 13 Will. 3.
1701 (2),* Mar. 8, . Anne.

1706-7 6 Ann.

1714, Aug. 1, . . George 1.
1719-20, . . . 6 Geo. 1.
1727, June 11, . George II.

* It muflt be borne in mind that under the old style until 1751 Inclusive, the
year was reckoned as beginning on the 25th of March. (See 24 Geo. 2, c. 23.)

296

Chronological Table

A.D.

1729-30,

■ •

3 Geo. 2.

A.D.

1825, . . .

6 Geo. 4.

1739-40,

• •

. 13 Geo. 2.

1829, . . .

. 10 Geo. 4,

1749-50,

■ •

. 23 Geo. 2.

1830, June 26,

William IV.

1760, Oct.

25,

. George III.

1832, . . .

2 & 3 WiU. 4.

1770, .

10 Geo. 3.

1835, . . .

5 & 6 Will. 4.

1779-80,

. 20 Geo. 3.

1837, June 20,

Victoria.

1790, .

30 Geo. 3.

1840, . . .

3 & 4 Vict.

1801, .

. 41 Geo. 3.

1850, . . .

13 & 14 Vict.

1810, .

50 Geo. 3.

1860, . . .

23 & 24 Vict.

1820, Jan.

29,'

. George IV

1870, . . .

33 & 34 Vict.

INDEX AND GLOSSARY

[In the case of words which have heen explained in the body of the work,
the explanation is not repeated in the index.]

Abbots .... 6, 13, 16

Acts of Parliament 185, 194, 196

Admiralty Court 211, 213, 220,

227, 230

Aflforest [turn into forest] 19

Aid [contribution from a

tenant to his feudal lord] 8, 17,

27, 266, 268-9

Aliens 12, 19, 23, 36, 54-6, 65-7

Appropriation of revenues 249,

270-1, 278, 281

Army (See also Military

Service) 37, 56-9, 242, 263

Array, Commissions of 24, 37

JshbyY, White . . . 225

Assize [trial] 204

„ grand .... 207

[The word also means a law,
and an assessment.]

Attainder 9

„ Bills of . . . 220
Attaint [proceeding in-
volving attainder] . . 204
„ writ of . . , . 214
Audit of public accounts . 279

BaUiffs 78, 84

Ballot .... 123-4, 174-5
Bank of England ... 288
Bankruptcy {See also
Debtors) . . 153, 167, 230

Baptists 39

Barons [men, the king's
men or vassals] {See also
Lords) ..... 8, 31

Baronets 26, 274

Battel {See Wager).

Benevolences {See Loans).
BUI of Eights 46, 57, 147, 167,
192, 222, 249, 280
Bills {See also Money Bills) 185,

189
Billeting . . . 26-7, 251
Bishops 5, 6, 13, 16, 76, 137,

234, 241

Boc-land 4

Body-guard ... 7, 24, 37
Boroughs 8, 75, 83-6, 88, 101,

109
Borsholder [surety-holder]

{See Tithingman).
Bribery of members . 165-6
„ of voters 161, 167, 174
Bridges, repair of 82, 90, 95, 264
Brig-bot [bridge-tribute] . 264
Burgage-tenure [socage-
tenure in an ancient

borough] 159

Burh-bot [fortress-tribute] 264

Cabinet {See Council).
Carucage [plough money] 268
Central Criminal Court . 228

Ceorls 4-6

Chancery, Court of 211, 213, 218,

230-1
Chancellor 164, 175, 202, 211,

23i, 236-6

Charter, Forest . . . 19, 82

„ Great 16-19, 80-2, 139,

202, 204, 207-8, 236, 268

Chartists 64

Chief Justiciary, chief jus-
tice 201, 203-4, ^'Za,*!^^

Index and Glossary

Cinqne Ports .... 85 ■

Circuits,fi3Cftl and judicial 79-^0,

203-4, 230, 267

CivU List . . 282-3, 280

Clarendon, conatitnitions of 16,

205

Clergy 6, 8, 15. 140, 271, 279

Gomes {Sa Count).

Commendams .... 221

Commoii Law .... 209

Common Pleas . 200, 202, 219

Commons, House of {Set

aim PttTbament) 159-176, 192,

194, 208, 226. 277, 280-1

Compurgation . . 199, 20S

Concilium ordinarium (Sa

Council, ordinary).
Conscience, Courts of [Ste

Small Debts).

Constable \comfs staJndi,

stable or stall attendant] 176,

203, 212

„ high 83, 94, 106-7

„ pariah or petty 86,

94, 106-8

., police . 103, 106-8

Coutem[>t of Court 45, 229-30

Conventicles .... 30

Convocation . 191-2, 271, 279

Copyhold . . 12, 27, 106

Com-lawB 63

Coroners 82

Coronation . . 126, 128-30
„ oath .... 197
Corporation Act , . . 30, 42
Corsned bread [execration

broad] 198

Council, cabinet, and mi-
nistry 179,243-8,260-2
., Great 137-8, 176, 200,
210, 235-6, 268
„ ordinary and privy 82,
176-fiO, 182, 185, 195,
201-2, 210, 217 227
281,236,237-8,242-3,

„ Judicial Committee

J'l • ■ 180, 228. 231
„ <rfP«eis. , .148,^16

CouneilofWateaauaofthe

North 216

Count [coma, attendant] 3, 13,

71, 137

Cionnty [Lat. comilalui,

district presided over by

a count] (S'ee Shire). ■-

County courts (.See al*o

Shire-moot) . . . 104-6

Coontiea Palatine . 78-9, 84.

108-4, 188

„ courts of . 216, 230

Courta-leet 74, 78, 80, 94, 107

Crown, lands 236, 249, 266,

288-4, 290-1

., pleas of the . . 30, 200

Cumulative voting . . . 123

Curia Regis (£Eea2n>Conncll ;

King's Bench) 176, 201-2, 234
Customs (See Duties).
Cuatodea reeni . . 236, 237
Oaataa rotubrum ... 88
Panegeld[DBne-money]84,2fl4-6
Divorce Court . . . 228-30
Debtors .... 44-5, 60-1
Declaration of Sights {Set Bill of

Rights).
Delegates, Court of 214-6, 227

Demesne 11, 84

Denization [mailing a deni-
zen, ex doiuUimu regis]
(See Aliens).
I Dissenters (See BeligiooB
disabilities).
Disseise [deprive of the
seisin or possession of

land] 18, 22

Duke [Lat. dvx, leader or

general] 20

Durham {See alio Counties

Palatine) 163

Dutie9,cu3tom826E, 284-6,291-2

„ excise 44, 250-1, 277,

284-6, 291-2

,, newspaper . . 60,64

„ paper . . 64, 284, 288

. Udormeu [aldermen,

\ 6\ieiB\&,T,%%,1<!-l, 75, 234

Index and Glossary

299

)»

»»

Karls 13, 75, 234

Ecclesiastical, commissioners 241

courts 76, 206,214-5,

227, 228, 231

legislation 181, 186-7,

191-2

,, supremacy . . 240-1

Education . 63, 121-4, 180

Elections, Parliamentary

(Stt aUo Ballot) 69, 81, 161,

167, 226

Ely 79, 104

Eorls .... 4, 5, 75, 234

Escheat 9

Escuage or Scutage [shield-
money] ... 27, 265, 267
Exchequer Court 201-2, 219
„ Chamber 210, 220
Excise (See Duties).
Exclusion Bill . . 133, 244
Expenditure, public 282, 290

Fealty [fidelity] . ... 8
Felony 9, 18

,, appeal of . . . 206
Feudalism . 8, 7-10, 20, 25-7
Fifteenths . . 267-70, 273-4
Five Mile Act ... . 31
Folc-gemot, folk-mote {See

also Shire-moot) ... 84
Folc-land [public land] 4, 234,

264-5
Forest laws and customs .

(See also Charter) 14-5, 19,

26, 76-7, 82
Franchise . 73, 79, 87, 106
Frankpledge (See Frithborga).

Freemen 8

„ of boroughs 101, 170
Frithborga [peace-pledge,

association for keeping

the peace] . . .72, 74, 78
Fyrd [service in the field] 73,

264

Gaols 87, 95-6

Gemot or moot [assembly] 70
Gerefa or reeve [chief officer] 70
Gilds 72

Great Charter (See Charter).
Great Council (See Council).

Habeas Corpus [a writ for
bringing the body or per-
son of an individual before
the Court] .... 32-3
,, , suspension of Act 43, 191
Halimote or hallmoot . . 77
Headborough (^See Tithing-

man).
Health, public . . . 115-8
Hearth-money . . . . 277
Heresy .... 22, 27-8, 184
Heretoga [Germ, herzog,

leader] 70

High Commission, Court of 215,

222
Highways, . . 91, 97, 114-6
HIaford, hlaefdige . . 6, 71
Homage [acknowledging
oneself the ?iomo or vassal

of another] 8

House tax . . 277, 286, 292

Hue and Cry 209

Hundred 2, 74, 85, 106, 209
Court of, ... 74, 78, 106
Huscarls [house-troops] (See

Bodyguard).
Husting [court or assembly
held in a house, a bor-
ough court] .... 84

Hustings 175

Hydage [tax on hydes of

land] 265, 272

Hyde [120 acres] . . 6, 264

Impeachment, 211, 226-7, 243,

249
Impressment (See Navy).
Income Tax .... 286, 292
Indemnity Acts . . 39, 63
Indulgence, Declarations of 81,

189
Insolvency (See Bank-
ruptcy ; Debtors).

Jews, .
Judges

12, 80, 39, 66, 61

300

Index and Glossary

»»

f »

ff

Jury 205, 207-9, 212-4, 221-2,

224

Jostices, in eyre [t» iiinere,
itinerating] .... 203-4
„ of the peace 86, 90, 108-9

Justicies, ¥nit of ... 81

King 2, 125^135

suspending and dis-
pensing powers of 186,

188, 192
judicial power of 197-8
executive power of 232,
234, 241-2, 251-6, 258-60
King's Bench, Court of 202, 204,

219
Knighthood .... 26, 275
Knight's service {See Ten-
ant in chivalry).

labourers, statutes of . 21, 87

].and-tax 285

L^acy-duty .... 286
Letters, opening of (See
Post-Office).

Libel 50-54,64

Licensing Act . . 35, 50-1

Life peerages 158

Livery [delivery of posses-
sion of hmd] . . 9,21, 27
Loans and benevolences 273-6
Local Grovemment Board 118-20,

180
London . . . 103, 106, 120
Lord-Lieutenant . 36, 9^ 264
Lords, House of . . . 153-9
jurisdiction of 210, 219-

20, 231

power of, as to money bills

(See also Parliament)

278, 280, 289

Lotteries . . . 165-6, 287

Lmdafaip or manor 6, 7, 10, 71-3,

. 77, 79, 106, 266

MMaOSeufiamB . . 96, 109

indbidnd] . . 70-2, 80
Chrte (Ae Charter,

>9

«»

Magnum conciliQm (See Coandl,
Great).

Male-tolte [sack-toll, on
wool] 269

Manor (See Lordship).

Mark H

Marquess [warder of a
march or frontier] . . 20

Marriage, 39, 61

Marshal [horse-servant] 203,212

Master of the Bolls 164, 281

Meetings, seditious . . 48-9

Mesne [intermediate] Pro-
cess, arrest on [arrest by a
writ after the commence-
ment and before the end
of a suit] 45

Metropolis . . 103, 106, 120

Michel -gemot [great or
general assembly] . . 136

MOitary service 7, 16, 22, 24-5,

56-7

Militia 37, 59, 67--8, 256, 264
Beserve 67

Ministry (See Council, cabinet).

Money Bills 192-3, 272, 278,

280,289

Monopolies . . . 33, 274-5

Moot, mote (See Gremot).

Mortmain, statutes of . 16

Municipal government 8, 75,
83-5, 88, 101,109-11

Murder, compensation f<n'
(See Wergild) ; con-
spiracy to 66

Mutiny Act 57-«, 147, 249, 251

National debt . . 279, 287-9
Naturalisation (See Aliens).
Navy ... 37, 57, 68-9, 242

„ impressment for 24, 57, 69
Newsnapers . 34-5, 50, 64-5

Nisi Prius 205

Nonconformists (See Beli-

gious Disabilities).

Oaths of Allegiance and
Supremacy, 29, 36, 38, 55, 61-3
\Ordjn\. 199,208

Index and Glossary

301

Ouster-le-main [delivery of
a ward's land out of the
guardian's hands! . . 9-27

Parish 71-3

ParHament 136-175, 224-5, 229,

237, 242, 270
„ Convention . . 144
Long . . 35, 162, 276
privilege of 142, 144-6,
148-9, 151, 153, 225-6
Paper {See Duties).
Papists (-See Religious Dis-
abilities).

Parties 244

Patents .... 33-4, 228
Peace, preservation of the 102
Peers {See also Lords) 13, 20,

40, 208
Petition of Right 26, 32, 217, 275
Petitions ... 46, 63-4, 184
Pillory .... 216, 220

Pleadings .209

Police (See Constable).
Pone^ writ of .... 100
Poor law . . . 91, 97, 111-4
„ Board . . 112, 119
Post-Office 36, 54, 65, 274, 277,

291
Poundage (See Tonnage).
Prcemunientes clause . . 141
Prcemunire facias, 135. [A
writ under which penal-
ties were inflicted by
Acts of Edw. 3 and
Ric. 2, for acting in
obedience to the Court
of Rome in defiance of
the law or the king's
authority. The like pen-
alties were afterwards im-
posed for other offences.]
Pre-emption {See Purveyance).
Press . . 23, 34-5, 49, 64-6
Primer Seisin ... 9, 27
Prince of Wales . . 14,290
Printing (See Press).
Priaage, prises . . 266, 269
Priyikge (See Parliament).

Probate Court . . . 229-30
Protection . . . 284, 291
Purveyance and Pre-emption 14,

22, 27, 277

Quakers 39, 61

Quia Emptores, statute of 183
Quorum, Justices of the 87

Rates (See Poor Law ; Tax-
ation, local).
Recognition 207

Record, Courts of . . 106
[So called from the enrolment
of their proceedings on
parchment.]

Recordari, writ of . . . 100

Recorders Ill

Reeve (See Gerefa).

Reform Acts . 49, 63, 168-173

Regarder ...... 77

Regency . 235-6, 246, 266-8

Relief 9

Religious Disabilities 22,27-31,
38-42, 61-3, 287
Request, Courts of (See

Small Debts).
Reserve forces .... 67-9
Revenues, royal and public, 277,

280, 282, 291-3
Riding [trithing or third] 74
Right (See Bill of Rights ;
Petition of Right).

Riot 41, 47, 161

„ Act 251

Roman Catholics (See Re-
ligious Disabilities).
Rome, See and Court of . 240
Royal assent . . . 191, 193
withholding of 147, 165

>»

Saladin tithe 267

Sanitary \aLWs(See Health,Public) .
Scandalum Magnatum

[scandal of nobles] . . 13
School Boards. . . . 122-4
Scot and lot [Scot or shotf
tax ; lot^ share. The pay-
ment of an assessed share
of a general impoat\ &4.^ \.^^

302

Index and Glossary

• 9

Sentagt!^ {Set Eacna^V. , Taxmtioii .... 204^ 893

Seal, Great ... 202, 237-8 „ local . 90, 95-C, 109

Prirr .... 237-« : Tekgrapha 291

. 8, 13, 137
8-10, 2^27
. . 10, 27
.. 31,42
... 63
S-e, 175, 199
... 6

Secretary of State, 240, 242, 261 Tenants in eapUe

Sedition 48-9 ; „ in chiralrj

Seisin \See Diaaeise; 9 j „ in aoeage .

Sessions, pettjandqwdal 91, 99 Test Act . . .
„ quarter 87, 99 „ UniTernties

Settlement, Acts of 134-d^ 223 Tbegns . . .
Settlement of paoper . . 93 Theows cr thialls

Sewers .... 90, 118, 121 • Titiui^ 72

Sheriff [scir-gerefa, shire- | Tithing-man . . . 73C, 94, 108

reeye] 70-1, 75, 78, sO-1, 83, Toleration Act (See alao

^ 85-6, 236 I Beligioos Disabilities) 38

265, 275-6 Tonnage an»l Poundage 265,

Ship-money . .
Shire [an'r, dirisionl or
coonty [Set also Coonty

Palatine) 70

Shire-moot [scir-gemot] or
Coonty Court 70-1,74-6,80-1,
100, 104, 160, 204
Sign Manna], Koyal . . 258
Signet, royal .... 238
Sithessoena [franchise of a

gesUh or amu$] ... 73
Sithcnndman [man of noble

or gentle buth] ... 5
Six Acts . . . . 49, 50, 53
Slaves, slarery 2, 6, 24-5, 38, 60
Slare Trade ... 38, 47-8
Small Debts Coorts 100, 106

Socage 10, 27

Stannarieii .... 85, 231
Star Chamber 32, 34-5, 51, 212,

216-7, 222-3
Statote duty. . . 91, 97, 115
StockdaU t. Hanaard 152, 229
Sobinfendation ... 8, 10
Subsidies . 271-4, 276-7, 279
Saccession-dnty . . 286, 292
Supremacy {See Ecclesiastical ;

Oath).
Supreme Court of Judica-
ture 230-2

Swein-mote [assembly of

sweins or freemen] . . 77
Syzhyndman .... 5

77,81

TaDii^e

265, 2i&^, Ti'\

274-5

Tortme 216

Toom {See Coorts-ket).

Township 71-3

Trade, Board of . . 180, 195-6

Treason 10, 224

Trinoda necessitas [three-
fold obligation] . . 82, 264
Tnn-gemot [town-moot] . 71
TweUhyndman .... 5
Twyhyndman .... 4

Unifonnity, Acts of 29, 30, 192
Unitarians 39

Verderor [warder of the

ter^, i.e., swazd and

timber] ....
Yerge [compass of the

BoyalCoort] . . . . i03
Testries ... 95, 101-2, 120
Veto (See Boyal Assent).
Tice-comes {See Shenff;

Tiacount).

Vill n

yOleins, Tillenage 8, 11-2, 21,

24, 3S, 7S
Tiscount [Tice-comes] . . 20
Volunteers 24, 59, 60, 68-9, 264

Wager of battel . 84, 206
ofkw. . . 199,208

Wapentake 74

[So cmJed frofn the inLalM-
uuu toaddnK eadi oclicr^
woqwDS at stated meeiJacs
1

Index and Glossary

303

Ward-mote [assembly of a
borough ward} ... 84

Wards and Liveries, Court
of 21, 27

Warrants, general . 43-4, 51
,, search . . 35, 51

Watchmen 103

Welshman [foreigner, man
not of Teutonic birth] . 6

Weregild [murder-money] 4, 7,

84
Witan, witenagemot [as-
sembly of the witan or
wise men] 127-8, 136-7, 181,
198, 233-4, 263
Woodmote 77

Yeomanry . . . 59, 68, 264

Printed by

Neill and Company,

Edinburgh.

NEW BOOKS

IN COURSE OF PUBLICATION BY

Messes. EIVINQTON

WATERLOO PLACE, LONDON

HIGH STREET, OXFORD; TRINITY STREET, CAMBRIDGE

May 1873

Some Elements of Religion. Lent

Lectures. By Henry Parry Liddon, D.D., D.C.L., Canon
of St. Paul's, and Ireland Professor of Exegesis in the Univer-
sity of Oxford.

Crown Svo. ^s.

Lectures on the Reunion of the

Churches. By John J. Ign. von Dollinger, D.D., D.C.L.,
Professor of Ecclesiastical History in the University of Munich,
Provost of the Chapel-Royal, &c. &c. Authorized Translation,
with Preface by Henry Nutcombe Oxenham, M.A., late
Scholar of Balliol College, Oxford.

Crown Svo. $s.

The Holy Catholic Church: its

Divine Ideal, Ministry, and Institutions. A Short Treatise.
With a Catechism on each Chapter, forming a Course of
Methodical Instruction on the subject. By Edward Meyrick
Goulbum, D.D., Dean of Norwich.

Crown %vo, 6s. 6d,

zoMD.5.73. "ft

Messrs. Rivington's

The Book of Church Law. Being

an Exposition of the Legal Rights and Duties of the Clergy and

Laity of the Church of England. By the Rev. John Henry

Blunt, M. A., F.S. A. Revised by Walter G. F. Phillimore,

B.C.L., Barrister-at-Law, and Chancellor of the Diocese of

Lincoln.

Crown Svo. yj. 6d,

Henri Perreyve. By A. Gratry,

Pr^tre de I'Oratoire, Professeur de Morale Evangelique k la
Sorbonne, et Membre de rAcademie Fran9aise. Translated,
by special permission, by the Author of ** A Dominican Artist,"
** Life of S. Francis de Sales," &c., &c.

With Portrait, Crown Svo. *js, 6d,

Notitia Eucharistica. A Com-

mentary, Explanatory, Doctrinal and Historical, on the Order
of the Administration of the Lord's Supper, or Holy Com-
munion, according to the use of the Church of England. By
W. E. Scudamore, M.A., Rector of Ditchingham, and for-
merly Fellow of St. John's College, Cambridge.

%vo. 2&r.

The Spirit ofS. Francis de Sales,

Bishop and Prince of Geneva. Translated from the French
by the Author of " The Life of S. Francis de Sales," ** A
Dominican Artist," &c. &c.

Crown Svo. 6s,

Our Mother Church : being Simple

Talk on High Topics. By Anne Mercier.

Crown Svo, "js. 6d.

ILontion * ^xforH • (!Dantiirtlifle

Nk'w Publications

Selection from the Sermons preached

during the latter Years of his Life, in the Parish Church of Barnes,
and in the Cathedral of St. Paul's. By Henry Melvill, B. D. , late
Canon of St. Paul's, and Chaplain in Ordinary to the Queen.
Two Volumes, Crown Svo. ^s. each.

Life, jfournals, and Letters of

Henry Alford, D.D., late Dean of Canterbury. Edited by his

Widow.

With Portrait and Illustrations, ^o. l6s.

The Guide to Heaven. A Book of

Prayers for every Want. (For the Working Classes.) Com-
pUed by a Priest. Edited by the Rev. T. T. Carter, M.A.,
Rector of Clewer, Berks.

*

A New Edition, l6mo, uniform in size with ** The Treasury
of Devotion," is.

The Large Type Edition may be had. Crown 2fvo, is, 6d.,
or limp clothe is,

A Selection from the Spiritual

Letters of S. Francis de Sales, Bishop and Prince of Geneva.
Translated by the Author of "The Life of S. Francis de Sales,**
" A Dominican Artist," &c. &c

Cro2vn Svo, 6s,

Fifteen Sermons preached before

the University of Oxford, between A.D. 1826 and 1843. By
John Henry Newman, B.D., sometime Fellow of Oriel Col-
lege, Oxford.

New Edition, Crown $vo, ^s.

Mkssrs. Rivington's

Words to Take with Us. A

Manual of Daily and Occasional Prayers, for Private and
Common Use. With Plain Instructions and Counsels on
Prayer. By W. E. Scudamore, M.A., Rector of Ditching-
ham, and formerly Fellow of St. John's College, Cambridge.

New Edition f Revised, Small Svo. 2s. 6d.

The Permanence of Christianity

Considered in Eight Lectures preached before the University
of Oxford, in the Year MDCCCLXXII, on the Foundation
of the late Rev. John Bampton, M.A. By John Richard
Turner Eaton, M.A., late Fellow and Tutor of Merton
College, Rector of Lapworth, Warwickshire.

%fuo. [Nearly ready.

Dictionary of Sects, Heresies, and

SCHOOLS OF THOUGHT. By various Writers. Edited
by the Rev. John Henry Blunt, M.A., F.S.A., Editor of
the " Dictionary of Doctrinal and Historical Theology."

{Forming the Second Portion of the ** Summary of Theology
and Ecclesiastical History," which Messrs. Rivington have
in course of preparation as a ** Thesaurus Theologicus " for the
Clergy and Laity of the Church of England,)

Imperial Svo, [In the Press,

The Thirty-nine Articles of the

CHURCH OF ENGLAND EXPLAINED IN A SERIES
OF LECTURES. By the Rev. R. W. Jelf, D.D., late
Canon of Christ Church, Oxford, and sometime Principal of
King's College, London. Edited by the Rev. J. R. King,
M.A., Vicar of St. Peter's in the East, Oxford, and formerly
Fellow and Tutor of Merton College.

Svo. [Nearly ready,

* ilonlion * ^xCorH * (ZEambriUge *

Ne^w Publications

Voices of Comfort Edited by the

Rev. Thomas Vincent Posbery, M.A., Hon. Chaplain to
the Bishop of Winchester, and sometime Vicar of St. Giles's,
Reading.

Small %vo, [In the Press,

Ecclesiastes. The Authorized Version,

with a running Commentary and Paraphrase. By the Rev.
Thos. Pelham Dale, M.A., Rector of St. Vedast with St.
Michael City of London, and late Fellow of Sidney Sussex
College, Cambridge.

fflfo, [In the Press.

Litanies for Congregational Use.

Edited by the Compiler of ** The Treasury of Devotion."

^2mo, [In the Press,

The Gospel of the Childhood. A

Practical and Devotional Commentary on the Single Incident
of our Blessed Lord's Childhood (St Luke ii. 41, to the end) ;
designed as a Help to Meditation on the Holy Scriptures, for
Children and Young Persons. By Edward Me3rrick Goul-
bum, D.D., Dean of Norwich.

Square i6mo, [In the Press,

The Choristers Guide. By W. A.

Barrett, Mus. Bac. Oxon., of St. Paul's Cathedral, Author of
** Flowers and Festivals."

Square l6mo, [Nearly ready.

Messrs. Rivington's

A History of the Holy Eastern

Church. The Patriarchate of Antioch, to the Middle of the
Fifth Century. By the Rev. John Mason Neale, D.D., late
Warden of Sackville College, East Grinsted. Followed by a
History of the Patriarchs of Antioch, translated from the Greek
of Conslantius I., Patriarch of Constantinople. Edited, with
an Introduction, by George Williams, B.D., Vicar of Elng-
wood, late Fellow of King's College, Cambridge.

^o, [In the Press.

The Annotated Book of Common

Prayer. Being an Historical, Ritual, and Theological Com-
mentary on the Devotional System of the Church of England.
Edited by John Henry Blunt, M.A., F.S.A.

Sixth Edition^ Revised. Imperial %vo, 361.

The Hour of Prayer ; being a

Manual of Devotion for the Use of Families and Schools.

Crown ^0. [Nearly ready.

The Last Days of Pere Gratry.

By Pfere Adolphe Perraud, of the Oratory, and Professor of
La Sorbonne. Translated by special permission.

Crown Svo. y, 6d.

The Knight of Intercession, and

other Poems. By the Rev. S. J. Stone, M.A., Pembroke
College, Oxford.

Second Edition, Small %vo. 6s.

Ne-w Publications

The, Argument delivered before

■ the Judicial Committee of the Privy Council. By Archibald
John Stephens, LL.D., one of Her Majesty's Counsel in the
case of Thomas Byard Sheppard against William Early
Benneit, Clerk. With an Appendix containing their Lord-
ships' Judgment.

%vo. gs.

Eight Lectures on the Miracles.

Being the Bampton Lectures for 1865. By J. B, Mozley,
D.D., Regius Professor of Divinity, and Canon of Christ
Church, Oxford.

Third Edition^ Revised, Crown Svo. Js. 6d.

A Shadow of Dante. Being an

Essay towards studying Himself, his World, and his Pilgrimage.
By Maria Francesca Rossetti.

With Illustrations, Second Editwn, Crown Svo, ios,6d.

A Handy Book on the Ecclesi-

astical Dilapidations Act, 187 1. With Remarks on the Quali-
fication and Practice of Diocesan Surveyors. By Edward G.
Bruton, Fellow of the Royal Institute of British Architects,
and Diocesan Surveyor, Oxford.

Crown Svo. ^s. 6d,

Sermons on Certain of the Less

Prominent Facts and References in Sacred Story. By Henry
Melvill, B.D., late Canon of St. Paul's, and Chaplain in
Ordinary to the Queen.

New Edition, Two vols. Crown Svo, ^s, each,

* EonHon • ^xforU * Camiirilifle •

Mkssrs. Riyington's

Aids to Prayer; or^ Thoughts on

the Practice of Devotion. With forms of Prayer for Private use.
By Daniel Moore, M.A., Chaplain in Ordinary to the Queen,
and Vicar of Holy Trinity, Paddington, Author of ** Sermons
on Special Occasions."

Second Edition. Square yzmo, 2s. 6d.

Church Organs: their Position

and Construction. With an Appendix containing some Ac-
count of the Mediaeval Organ Case still existing at Old Radnor,
South Wales. By Frederick Heathcote Sutton, M.A.,
Vicar of Theddingworth.

With Illustrations, Imperial folio, 6s. 6d.

The Path of Holiness : a , Thirst

Book of Prayers, with the Service of the Holy Communion, for
the Young. Compiled by a Priest. Edited by the Rev. T. T.
Carter, M.A., Rector of Clewer, Berks.

JVith Ulustrations. Crown i6mo, is. 6rf., or limp cloth, is.

The Athanasian Origin of the

Athanasian Creed. By J. S. Brewer, M.A., Preacher at the
Rolls, and Honorary Fellow of Queen's College, Oxford.

Crown Svo. 3J. 6d.

Historical Narratives. From the

Russian. By H. C. Romanoff, Author of '* Sketches of the
Rites and Customs of the Greco-Russian Church," &c.

Crown ^vo. 6s,

fLonHon • ®ifor)r * dLamhxitist

New^ Publications

The Way of Life. A Book of

Prayers and Instruction for the Young at School, with a Pre-
paration for Confirmation. Compiled by a Priest. Edited by
the Rev. T. T. Carter, M. A., Rector of Clewer, Berks.

Imperial ^2mo. is, 6d.

Thoughts on Personal Religion.

Being a Treatise on the Christian Life in its Two Chief Ele-
ments, Devotion and Practice. By Edward Meyrick Goul-
bum, D.D., Dean of Norwich.

New Presentation Edition^ elegantly printed on Toned Paper,
Tkvovols, Small ^0. los. 6d,

An Edition in one vol., 6s. 6d, ; also a Cheap Edition , 3^. 6^.

Life in the World : being a Selec-

tion from Sermons preached at St. Luke's, Berwick Street. By
the Rev. Harry Jones, M.A., Incumbent of St. Luke's,
Berwick Street, Soho.

Second Edition. Small Svo. 5s.

TAe Perfect Man; or, Jesus an

Example of Godly Life, By the Rev. Harry Jones, M.A.,
Incumbent of St. Luke*s, Berwick Street.

Second Edition. Crown Svo. 3^. 6d.

* nnrinnn n i - ii

Dictionary of Doctrinal and His-

torical Theology. By Various Writers. Edited by the Rev.
John Henry Blunt, M.A., F.S.A., Editor of the "The
Annotated Book of Common Prayer."

Second Edition. Imperial %vo, 42s.

Hontion • ^Motti * (ZTamfirtlifge ♦ b 5

Messrs. Rivington's

The Psalms. Translated from the

Hebrew. With Notes, chiefly Ex^eticaL By WilUam Kay,
D.D., Rector of Great Leighs, late Principal of Bishop's Col-
lege, Calcutta.

&/<?. 121". dd.

Sermons. By Henry Melvill,

B.D., late Canon of St. Paul's, and Chaplain in Ordinary to
the Queen.

New Edition. Two vols. Crown Svo. ^s. each.

The Origin and Development of

Religious Belief. By S. Baring- Gould, M.A., Author of
** Curious Mjrths of the Middle Ages.*'

Vol. I. MONOTHEISM AND POLYTHEISM.

Second Edition, Svo, 15J.

Vol. II. CHRISTIANITY.

Svo, 1 5 J.

Parish Musings ; or. Devotional

Poems. By John S. B. Monsell, LL.D., Rural Dean, and
Rector of St. Nicholas, Guildford.

Fine Edition, Small %vo, ^s.

Cheap Edition, iSmo, limp cloth, is. 6d,; or in cover, is.

Sermons on Special Occasions.

By Daniel Moore, M.A., Chaplain in Ordinary to the Queen,
and Vicar of Holy Trinity, Paddington; Author of ** Aids to
Prayer," &c.

Crown Svo, Js. 6d.

Hontion * ^xforti • (STamfnrilige

Nk^w Publications

Prayers and Meditations for the

' Holy Communion. With a Preface by C. J. Ellicott, D.D.,
Lord Bishop of Gloucester and BristoL

With Rubrics in red. Royal ^fl-rno, 2s. 6d, \

The Star of Childhood. A First

Book of Prayers and Instruction for Children. Compiled by a
Priest. Edited by the Rev. T. T. Carter, M.A., Rector of
Clewer, Berks.

With Illustrations reduced from Engrainngs by Fra Angelico.

Royal i6mo, 2s. 6d.

Notes on Church Organs ; their

Position and the Materials used in their Construction. By C.
K. K. Bishop.

With Illustrations, Small ^o, 6s,

The Hidden Life of the Soul.

From the French. By the Author of " A Dominican Artist,"
** Life of Madame Louise de France,'* &c. &c.

Crown Svo, ^s.

A ncient Hymns. From the Roman

Breviary. For domestic use every Morning and Evening of
the Week, and on the Holy Days of the Church. To which are
added, Original Hymns, principally of Commemoration and
Thanksgiving for Christ's Holy Ordinances. By Richard
Mant, D.D., sometime Lord Bishop of Down and Connor.

New Edition, Small Svo, ^s.

Messrs. Rivington's

The Two Brothers y and other Poems.

By Edward Henry Bickersteth, M.A., Vicar of Christ
Church, Hampstead, and Chaplain to the Bishop of Ripon ;
Author of " Yesterday, To-day, and for Ever."

Second Edition, Small 8z/^. 6^.

The Life of yustification. A Series

of Lectures delivered in Substance at All Saints', Margaret
Street, in Lent, 1870. By the Rev. George Body, B.A.,
Rector of Kirkby Misperton.

Second Ediiion, Crown ^vo. 4s. 6d,

The Life of Temptation : A Course

of Lectures delivered in Substance at S. Peter's, Eaton Square,
in Lent, 1872; also at All Saints', Margaret Street, in Lent,
1869. By the Rev. George Body, B.A., Rector of Kirkby
Misperton, Yorkshire.

Crown %fvo. 4J. td.

The ^'Damnatory Clauses" of the

Athanasian Creed Rationally Explained, in a Letter to the
Right Hon. W. E. Gladstone, M.P. By the Rev. Malcolm
MacColl, M.A., Rector of St. George, Botolph Lane.

Crown %vo. 6s.

The Sayings of the Great Forty

Days, between the Resurrection and Ascension, regarded as the
Outlines of the Kingdom of God. In Five Discourses. With
an Examination of Dr. Newman's Theory of Development.
Bv George Moberly, D.C.L., Bishop of Salisbury.

Fourth Edition, Crown %vo. *]$. 6d.

EontJon ♦ ©xforU ♦ Cambridge

New Publications

History of the Church under the

Roman Empire, A.D. 29-476. By the Rev. A. D. Crake,
B.A.y Chaplain of All Saints' School, Bloxham.

Crown %vo, [In the Press.

The Pope and the Council. By

Janus. Authorized Translation from the German.
Third Edition, Revised, Crown %vo, *js, 6d.

Letters from Rome on the Council.

By Quirinus. Reprinted from the "Allgemeine Zeitung."
Authorized Translation.

Crown %vo, I2J.

Directorium Pastorale. The

Principles and Practice of Pastoral Work in the Church of
England. By the Rev. John Henry Blunt, M.A., F.S.A.,
Editor of ** The Annotated Book of Common Prayer," &c. &c.

Third Edition, Revised, Crown Svo, Js. 6d.

The Pursuit of Holiness. A

Sequel to " Thoughts on Personal Religion," intended to carry
the Reader somewhat farther onward in the Spiritual Life. By
Edward Meyrick Goulbum, D.D., Dean of Norwich.

Fourth Edition, Small Svo, 5 j.

HonDon • ^xforH • Cambridge

Messrs. Rivington's

Apostolical Succession in the

Church of England. By the Rev. Arthur W. Haddan, B.D.,
Rector of Barton-on-the-Heath, and late Fellow of Trinity
College, Oxford.

The First Book of Common

Prayer of Edward VI. and the Ordinal of 1549. Together with
the Order of the Communion, 1548. Reprinted entire, and
Edited by the Rev. Henry Baskerville Walton, M.A., late
Fellow and Tutor of Merton Collie ; with Introduction by the
Rev. Peter Goldsmith Medd, M.A., Senior Fellow and
Tutor of University College, Oxford.

Small Svo. 6s,

A llegories and Tales. By the Rev.

W. E. Heygate, M.A., Rector of Brighstone.

Crown 87/^. [In the Press,

Twelve Addresses at his Visita-

tion of the Cathedral and Diocese of Lincoln, in the year
MDCCCLXXiii. By the Bishop of Lincoln.

Crown Svo, [Nearly ready.

Parochial and Plain Sermons.

By John Henry Newman, B.D., formerly Vicar of St. Mary's,
Oxford. Edited by the Rev. W. J. Copeland, Rector of
Famham, Essex.

New Edition, Eight vols. Crown Svo. 5/. each.

Hontion • ^xforlK • CambriHrge

Ne^w Publications

Sermons bearing on Subjects of

the Day. By John Henry Newman, B.D. Edited by the
Rev. W. J. Copeland, Rector of Famham, Essex.

New Edition, Crown 8z/^. 5j.

Spiritual Guidance. With an In-
troduction by the Rev. T. T. Carter, M. A., Rector of Clewer,

Berks, and Honorary Canon of Christ Church Cathedral,
Oxford.

Crown %vo, 6j.

^■^^^^«^^^«^«^«^k^^<^rf^^

Self 'Renunciation. From the French.

With Introduction by the Rev. T. T. Carter, M.A., Rector
of Clewer, Berks.

Crown %vo, 6s.

The Divinity of our Lord and

Saviour Jesus Christ. Being the Bampton Lectures for
1866. By Henry Parry Liddon, D.D., D.C.L., Canon of
St. Paul's, and Ireland Professor of Exegesis in the University
of Oxford.

Sixth Edition, Crown %fvo. 5J.

Sermons Preached before the

University of Oxford. By Henry Parry Liddon, D.D.,
D.C.L., Canon of St. Paul's, and Ireland Professor of Exegesis
in the University of Oxford.

Fourth Edition, Crown %vo, ^5,

Messrs. Rivington's

Brighstone Sermons. By George

Moberly, D.C.L., Bishop of Salisbury.

Second Edition, Crown $vo, *js, 6d.

A Manual for the Sick. With

other Directions. By Launcelot Andrewes, D.D., sometime
Lord Bishop of Winchester. Edited, with a Preface, by
Henry Parry Liddon, D.D., D.C.L., Canon of St. Paurs.

With Portrait, Second Edition, Large type, 2./^no. 2s, 6d,

The Apocalypse : with Notes and

Reflections. By the Rev. Isaac Williams, B.D., late Fellow
of Trinity College, Oxford.

Crown ^0, [In the Press.

The Life of Madame Louise de

France, Daughter of Louis XV., known also as the Mother
T6rese de S. Augustin. By the Author of **A Dominican
Artist," "The Life of S. Francis de Sales," &c.

Crown Svo. 6s,

Instructions for the Use of Can-

didates for Holy Orders, and of the Parochial Clergy ; with
Acts of Parliament relating to the same, and Forms proposed
to be used. By Christopher Hodgson, M.A., Secretary to
the Governors of Queen Anne's Bounty.

Ninth Edition, Revised and Enlarged, Svo. i6s.

aontJon • ©ifort * CambriUge

Netw Publications

The Treasury of Devotion. A

Manual of Prayers for General and Daily Use. Compiled by a
Priest. Edited by the Rev. T. T. Carter, M.A., Rector of
Clewer, Berks,

Sixth Edition. l6mOf 2s. dd,; Limp clothy 2J.

Bound with the Book of Common Prayer, 3J. dd,

A Dominican Artist. A Sketch

of the Life of the Rev. Pere Besson, of the Order of St. Dominic.
By the Author of " The Life of Madame Louise de France," &c.

Second Edition, Crown %vo. 6s.

The Reformation of the Church

of England. Its History, Principles, and Results. a.d. 1514-

1547. By John Henry Blunt, M.A,, Vicar of Kennington,

Oxford, Editor of **The Annotated Book of Common Prayer,"

&c., &c.

Second Edition. Svo. i6s.

Fables respecting the Popes of the

Middle Ages, A Contribution to Ecclesiastical History. By
John J. Ign. von Dollinger. Translated, with Introduc-
tion and Appendices, by Alfred Plummer, M.A., Fellow and
Tutor of Trinity College, Oxford.

Zvo. 14J.

Sketches of the Rites and Customs

of the Greco-Russian Church. By H. C. Romanoff. With

an Introductory Notice by the Author of "The Heir of Red-

clyffe."

Second Edition. Cr&um Svo. *js. 6d.

fLonHon • Oxford • CambrtDge

Messrs. Riyington's

Household Theology. A Handbook

of Religious Information respecting the Holy Bible^ jthe Prayer
. Book, the Church, the Ministry, Divine Worship, the Creeds,
&c., &c. By John Henry Blunt, M.A.

New Edition. Small %fvo, 3J. dd.

Curious Myths of the Middle

Ages. By S. Baring- Gould, M.A., Author of " Post-
Mediaeval Preachers," &c.

With nitistrations. New Edition, Crown %vo, 6s.

The Prayer Book Interleaved.

With Historical Illustrations and Explanatory Notes, arranged
parallel to the Text. By the Rev. W. M. Campion, D.D.,
Fellow and Tutor of Queen's College, and Rector of St.
Botolph's, and the Rev. W. J. Beamont, M.A., late
Fellow of Trinity Collie, Cambridge. With a Preface by the
Lord Bishop of Ely.

Seventh Edition, Small Svo, *js. 6d.

Sickness; its Trials and Blessings.

New Edition. Small Svo. 3^. 6d,
Also a Cheap Edition^ is. 6d.; or tn paper cover, is.

Hymns and Poems for the Sick

and Suffering. In connection with the Service for the Visita-
tion of the Sick. Selected from Various Authors. Edited by
T. V. Fosbery, M.A., Vicar of St. Giles's, Readmg.

Ntfw Edition. Small Svo. 3^. 6d.

Hontion ♦ ^iforlj ♦ Camirilifie

Ne^w Publications

Miscellaneous Poems. By Henry

Francis Lyte, M.A.

New Edition. Small Svo, $s.

The Happiness of the Blessed.

Considered as to the Particulars of their State ; their Recognition
of each other in that State ; and its Differences of Degrees. To
which are added, Musings on the Church and her Services.
By Richard Mant, D.D., sometime Lord Bishop of Down
and Connor.

New Edition, Small %vo, y. 6d,

Catechesis; or. Christian Instruc-

tion Preparatory to Confirmation and First Communion. By
Charles Wordsworth, D.C.L., Bishop of St. Andrew's.

New Edition. Small %vo. 2s.

Warnings of the Holy Week, etc.

Being a Course of Parochial Lectures for the Week before
Easter and the Easter Festivals. By the Rev. W. Adams,
M. A., Author of ** Sacred Allegories."

Sixth Edition. Small %vo. 4J. dd.

Consolatio ; or^ Comfort for the

Afflicted. Edited by the Rev. C. E. Kennaway. With a
Preface by Samuel Wilberforce, D.D., Lord Bishop of
Winchester.

New Edition. Small %vo. y. 6d.

EonUon * ^xforti * (ZTambriUge

MKSSRS. RlYINGTON'S

Family Prayers. Compiled from

Various Sources (chiefly from Bishop Hamilton's Manual), and
arranged on the Liturgical Principle. By Edward Meyrick
Goulbum, D.D., Dean of Norwich.

Neiv Edition, Large Type, Crown ^o, 3J. dd.
Cheap Edition. l6mo, is.

The A nnual Register. A Review

of Public Events at Home and Abroad, for the Year 1872.

%fvo, i8j.
The Volumes of the New Series, 1863 to 1871, may be had, i8j. each.

Yesterday, To-Day, and For

Ever. A Poem in Twelve Books. By Edward Henry
Bickersteth, M. A., Vicar of Christ's Church, Hampstead, and
Chaplain to the Bishop of Ripon.

Seventh Edition. Small %vo. 6s.

Bible Readings for Family

Prayer. By the Rev. W. H. Ridley, M.A., Rector of

Hambleden.

Crown %vo.

Old Testament — Genesis and Exodus 2J.

XT ^r * 4. « z:^ \ St. Matthew and St. Mark. 2^.

New Testament, 3^. 6^. | gt. Luke and St. John. 2s.

Liber Precum Publicarum Eccle-

siae Anglicanae. A Gulielmo Bright, A.M., et Petro
Goldsmith Medd, A.M., Presbyteris, CoUegii Universitatis
in Acad. Oxon. Sociis, Latine redditus.

New Edition, with all the Rubrics in red. Small Svo. 6s.

ILonlioix • ^iforU ♦ (CamftritJgc

Ne^w Publications

Sacred A llegories. The Shadow of

the Cross— The Distant Hills— The Old Man's Home— The
King's Messengers. By the Rev. W, AdamS) M.A, late
Fellow of Merton College, Oxford.

With numerotis IllustraHons,

New Edition, One Vol, Crown %fvo, ^s.

The Four Allegories separately. Crown %vo, 2s, 6d. each,

A Glossary of Ecclesiastical

Tenns. Containing Brief Explanations of Words used in
Theology, Liturgiology, Chronology, Law, Architecture, Anti-
quities, Symbolism, Greek Hierology and Mediaeval Latin ;
together with some account of Titles of our Lord, Emblems of
Saints, H)rmns, Orders, Heresies, Ornaments, Offices, Vest-
ments and Ceremonial, and Miscellaneous Subjects. By
Various Writers. Edited by the Rev. Orby Shipley, M. A.

Crown Zvo. i8j.

Stones of the Temple ; or Lessons

from the Fabric and Furniture of the Church. By Walter
Field, M.A., F.S.A., Vicar of Godmcrsham.

With numerous Illustrations. Crown Svo. *js. 6d.

Strena Christiana; a Christian

New Year's Gift ; or, Brief Exhortations to the Chief Outward
Acts 'of Virtue. Translated from the Latin of Sir Harbottle
Grimston, Bart., Member of Parliament, 1640. 32/n^. is. dd.

Or the Latin and English together. ^2m0f 2s, 6d.

* EonHon * ^xfbrU * Camiitilige •

Mkssrs. Rivimgton's

A Companion to the Old Testa-

ment Being a Plain Commentary on Scripture History, down
to the Birth of our Lord.

Small ^0. 3 J. dd.

Latin Prose Exercises. Being

Easy Graduated English Sentences for Translation into Latin,
with Rules, Explanations, a Vocabulary, and Index. Intended
for the Use of Beginners and Junior Forms of Schools. By
R. Prowde Smith, B.A., Assistant Master at the Grammar
School, Henley-on-Thames.

Crown Svo. 2s. 6d.

A Theory of Harmony. Founded

on the Tempered Scale. With Question and Exercises for the
use of Students. By John Stainer, Mus. Doc., M. A., Magd.
Coll., Oxon, Organist to St. Paul's Cathedral.

Siecond Edition, $V0. *js. 6d.

Selections from Lucian. With

English Notes. By Evelyn Abbott, Assistant Master in

Clifton College.

Small ^0. 3J. (id.

Progressive Exercises in Latin

Elegiac Verse. By C. G. Gepp, B.A., late Junior Student
of Christ Church, Oxford, and Assistant Master at Tonbridge
School.

Second Edition^ Reuised. Crown Svo. 3J. 6d.

• ILonlron • ^xCbtH * (Slamiirilige •

Ne^w Publications

Examples of Conies and Curves.

By the Rev. W. H. Laverty, M.A., Fellow and Mathematical
Lecturer of Queen's College, and Public Examiner in the
University of Oxford.

Fcap. 4/(^. 2J. (id.

Materials and Models for Greek

and Latin Prose Composition. Selected and arranged by J . Y.
Sargent, M.A., Tutor, late Fellow of Magdalen College, Ox-
ford; and T. F. Dallin, M.A., Fellow and Tutor of Queen's
College, Oxford.

Crown Sz/o. *js. 6d.

The First Hebrew Book; on the

Plan of "Henry's First Latin Book." By the late Thomas
Kerchever Arnold, M.A., formerly Fellow of Trinity College,
Cambridge.

New Edition, i2mo. *js.6d,

Madvigs Syntax of the Greek

LANGUAGE, especially of the Attic Dialect, for the use of
Schools. Translated by Henry Browne, M. A., and edited by
the late T. K. Arnold, M.A.

New Edition. Imperial i6mo, Ss. 6d,

A Sketch of Grecian and Roman

History. By A. H. Beesly, M. A., Assistant Master at Marl-
borough College.

With Maps, Small %vo, [Nearly ready.

i^onHon * <^xCorli * (SDamiinDige

et» PampfiUtjar

English Church Defence Tracts.

No. I. ROMAN MISQUOTATIONS.

No. 2. ARE CLERGYMEN OF THE ENGLISH CHURCH RIGHTLY
ORDAINED r

No. 3. PAPAL INFALLIBILITY.

No. 4. MORE ABOUT "ROMAN MISQUOTATIONS:" IN REPLY
TO A PAMPHLET ENTITLED "ANGLICAN MISRE-
PRESENTATIONS.'*

8z/^. yi, each.

The Shortened Order for Morning and Even-

ing Prayer daily throughout the Year except on Sunday,
Christmas Day, Ash Wednesday, Good Friday, and Ascension
Day. With ** The Act of Uniformity Amendment Act**

Royal yimo. id.

An Additional Order for Evening Prayer on

Sundays and Holy-Days throughout the Year taken from the
Holy Scriptures, and Book of Common Prayer, and approved by
the Ordinary for use in the Diocese of Peterborough, with
a Table of Occasional Psalms and lessons as approved by
the Ordinary.

Royal ^2mo, id.

♦ EonUon ♦ ©ifotU ♦ CatnftriUge ♦

Nk^w Pamphlkts

A CJiarge to the Clergy of the Diocese of St.

David's. Delivered by Connop, Lord Bishop of St. David's

at his Eleventh Visitation, October and November 1872. With

an Appendix.

Svo. 2s. 6d.

A Charge delivered to the Clergy of the Dio'

cese of Llandaff, at his Eighth Visitation, July 1872. By
Alfred Ollivant, D.D., Bishop of Llandaff.

%fVO. 25,

A Charge delivered to the Clergy of the Dio-

cese of Bangor at his Fifth Visitation, August 1872. By J. C.
Campbell, D.D., Bishop of Bangor.

Zvo. is.

Indian Missions. A Letter to His Grace

the Archbishop of Canterbury. From Henry Alexander
Douglas, D.D., Bishop of Bombay.

%vo. IS.

The Great Commission. Meditations on

Home and Foreign Missions. Designed originally for the
December Ember Week of the Year 1872, in which falls the
Appointed Day of Humble Supplication for an Increase of
the Number of Missionaries, and for the Blessing of Almighty
God upon their Labours. By Edward Meyrick Goulbum,
D.D., Dean of Norwich.

Small %vo, 6d,

■^ ■ - III! ■' ' ' ' — ^^^— ^?7^^^_

* ILonKon • ^xfoTli * Camiirtlige •

Nk^w Pamphlkts

The Life of Faith and the Athanasian Creed,

A Sermon preached before the University of Oxford in the
Church of St. Mary the Virgin on the Twenty-First Sunday
after Trinity, 1872. By H. P. Liddon, D.D., Ireland Pro-
fessor of Exegesis and Canon of St. Paul's.

%V0. IS,

A Common Sense View of the Athanasian

Creed Question. By Henry Arthur Woodgate, B.D.,
Rector of Belbroughton.

Crown Svo. 4//.

Our Position as Catholics in the Church of

England. A Letter to a Friend. By the Rev. Arthur
WoUaston Hutton, B. A., formerly Scholar of Exeter College,
Assistant-Curate of St. Barnabas, Oxford.

%7J0, \s.

Defence of the English Ordinal. With some

Observations upon Spiritual Jurisdiction* and the Power of

the Keys. By the Rev. W. R. Churton, M.A., Fellow of

King's College, Cambridge, and Honorary Canon of Rochester

Cafhedral.

%vOf cloth, 35.

The Colour of the Cross, An Allegory,

By J. G. S. Nichol, Head Master of King James's Grammar
School, and Curate of Knaresborough.

Crown Svo. is.

Commentary on t|)e (Sogptifs

Devotional Commentary on the Gospel Narra-

TiVE. By the Rev. Isaac Williams, B.D., formerly Fellow
of Trinity College, Oxford.

New Edition, Eight Volumes, Crown ^o. $s. each,
Thouerlits on the Study of the Holy Grospels.

Characteristic Differences in ike Four Gospels — Our Lord's Manifestations of
Himself—The Rule of Scriptural Interpretation furnished by our Lord-
Analogies of the Gospel— Mention of Angels in the Gospels — Places of Our
Lord's Abode and Ministry — Our Lord's Mode of Dealing with hi*
Apostles — Conclusion.

A Harmony of the Four Evangr^ists.

Cur Lord*s Nativity — Our Lord's Ministry {Second Year)— Our Lord's
Ministry {Third Year) — The Holy Week—Our Lord's Resurrection,

Our Lord's Nativity.
The Birth at Bethlehem— The Baptism in Jordan— The First Passover.

Our Lord's Ministry. Second Yesu*.
The Second Passover— Chriat with the Twelve— The Twelve sent Forth,

Our Lord's Ministry. Third Yesu*.

Teaching in Galilee — Teaching at yerusalem — Last Journey from. Galilee te

Jerusalem.

The Holy Week.

The Approach to Jerusalem— The Teaching in the Temple— The Discourse on

the Mount of Olives— The Last Supper.

Our Lord's Passion.

The Hour of Darkness — The Agony — The Apprehension — The Condemnation —
The Day of Sorrows— The Hall of Judgment— The Crucifixion— The
Sepulture.

Our Lord's Resurrection.

The Day of Days— The Grave Visited— Christ Appearing— The Going to
Emmaus—Tke Forty Days— Tke Apostles Assembled— Tke Lake in Galilee
— Tke Mountain in Galilee^Tke Retumfrom Galilee.

The Apocalypse, with Notes and Reflections.

[In the Press,

382 tfje game auftor^

The Characters of the Old

Testament. A Series of
Sermons. 5x.

Female Characters of

Holy Scripture. A Series
of Sermons. 5/.

lUnlion • ^xCotU • CamiiriUge

ffiie^ to €bti$itim ftnotoleUge

Small $V0, 2s, 6d, each,

A Key to the Knowledge and Use of the Book

of Common Prayer. By John Henry Blunt, M. A., F.S.A.,
Editor of "The Amiotated Book of Common Prayer."

A Key to the Knowledge and Use of the Holy

Bible. By John Henry Blunt, M.A.

A Key to the Knowledge of Church History

(Ancient). Edited by John Henry Blunt, M.A.

A Key to the Knowledge of Church History

(Modem). Edited by John Henry Blunt, M.A.

A Key to Christian Doctrine and Practice.

(Founded on the Church Catechism. ) By John Henry Blunt,
M.A.

A Key to the Narrative of the Four Gospels.

By John Pilking^on Norris, M.A., Canon of Bristol, for-
merly one of Her Majesty's Inspectors of Schools.

A Key to the Narrative of the Acts of the

Apostles. By John Pilkington Norris, M.A.

ILontron • ^xfotU * (JTaminrtUge

i2mo.
By J. HAMBIilN SMITH, M.A.,

or GONVILLB AND CAIUS COLLEGE, AND LATE LECTURER AT ST. PETER's COLLBCB,

CAMBRIDGE.

A Igebra.

Part I. y. Without Answers, 2s, 6d,

Exercises on Algebra.

Parti. 2s. 6d. [Copies may be had without the Answers.]

Elementary Trigonometry.

4s, 6d.

Elementary Hydrostatics.
Elements of Geometry.

Containing Books i to 6, and portions of Books 1 1 and 12 of
Euclid, with Exercises and Notes. 3^. td.

Books I and 2 ; Books 3 and 4 ; Books 5 and 6 ; and portions
of Books II and 12 ; 2J. each; or limp cloth, is, 6d,

Elementary Statics.

3-f-

By E. J. GROSS, M.A.,

FELLOW OP GONVILLE AND CAIUS COLLEGE, CAMBRIDGE.

Algebra.

Part II. [/« the Press.

By a. RICHARDSON, M.A.,

ASSISTANT MASTER AT WINCHESTER COLLEGE, AND LATE FELLOW OF ST. JOHN S

COLLEGE, CAMBRIDGE.

Geometrical Conic Sections.

[In the Press.
Other Works are in Preparation,,

Catena €lti0ftitovum

A Series of Classical Authors. Edited by Members of both Universities ^ under
the Direction of the Rev. Arthur Holznes. M.A., Senior Fellow andDeam.
of Clare College, Cambridge^ and late Preacher at the Chapel Royal^ WhiU-
hall; and the Rev. Charles BifiTgr, M.A., late Senior Student and Tutor
of Christ Church, Oxford; Princt/al of Brighton CoU^^e.

Sophoclis Tragoediae,

THE BLBCfTBA, v. 6d. THE AJAX, y 6d.
Edited by R. C. JebO, M.A., Fellow and Tutor of Trinity College, Cam-
bridge, and Public Orator of the University.

yuvenalis Satirae,

Edited by G. A. Simcox^ M.A., Fellow and Classical Lecturer of Queen's
College, Oxford. New Edition, revised. 5*,

Thucydidis Historia.

Edited by Chas. Big^, M.A., late Senior Student and Tutor of Christ
Church, Oxford ; Principal of Brighton College.

Books I. and II., with Introductions, (a.

Demosthenis Orationes Publicae,

THE OLYNTHI ACS. m. td. THE PHIIilPPIGS, y. DB

FALSA LEQATIONE, ts.
Edited by G. H. Heslop, M.A, late Fellow and Assistant Tutor of
Queen's College, Oxford ; Head Master of St Bees.

Aristophanis Comoediae.

THE ACHABNIANS and THE KNIGHTS, 4^. THE

CLOUDS, V. 6rf. THE WASPS, 3*. 6rf.
Edited by W. O. Green, M.A, late Fellow of King's College, Cambridge;

Assistant Master at Rugby School.

An Edition of THE ACHABNIANS and THE KNIGHTS, Re-
vised and especially adapted for Use in Schools. \s.

Isocratis Orationes,

AD DEMONICUM ET PANBGYBICUS. 4x. td.

Edited by John Edwin Sandys, M. A, Fellow and Tutor of St John's

College, Classical Lecturer at Jesus College, Cambridge.

Persii Satirae,

Edited by A. Pretor, M. A, Fellow of St. Catherine's College, Cambridge,
Classical Lecturer of Trinity Hall. 3*. 6d

Homeri Ilias,

Edited by S. H. Reynolds, M.A., late Fellow and Tutor of Brasenoae
College, Oxford. Books I. to All. 6*.

Terenti Comoediae,

ANDRIA ET EUNXJCHUS. 4*- ^'

Edited bv T. L. Papillon, .M.A, Fellow of New College, Oxford, late

Fellow of Merton.

Demosthenis Orationes,

Edited by the Rev. Arthur Holmes, M.A, Senior Fellow and Dean of

DB COBONA w.

jy the Rev. Artl
Clare College, Cambridge, and late Preacher at the Chapel Royal, WhitehalL

Herodoti Historia,

Edited by H. G. WoodS, Fellow and Tutor of Trinity College, Oxford.

Book I. ds. Book II. 5^.

Select ]pia^ of ^fia&jBipere

RUGBY EDITION, With an IntroducHon and NoUs (•

each Play. Small Stv.

As You Like It, «• : paper cover, w. bd.

Edited by the Rer. Charles E. Moberly, M.A., Assistant Master ia
Rugby School, formerly Scholar of Balliol College, Oxford.

Macbeth. «. ; paper cover, i*. ftd,
Ekiited by the same.

CoriolanUS. «*• ^^ ; paper cover, a*.

Edited by Robert Whltelaw, M. A., Assistant Master in Rugby School,
formerly Fellow of Trinity College, Cambridge.

Hamlet. «». ^' ; a^a*- covers, «.

Edited by the Rev. Charles B. Moberly, M.A.

The Tempest. \In freParaH^,

Edited by J. Surtees Phlllpotts, M.A., Assistant Master in Rugby

School, formerly Fellow of New College, Oxford.

Mtcch Ado about Nothing. umfrt^mtum.

Edited by the same.

*^* Other Plays are in Preparation.

®£Ott^]Bf Lay of the Last Minstrel.

R UGBY EDITION. Edited, with an Introduction, Notes, and Glossary,
by J. Surtees PhillpottB, M.A., Assistant Master in Rugby School,
formerly Fellow of New College, Oxford. ,

RUGBY EDITION. Abridged and Adapted for the use of Schools, by
Arthur SidgWick, M.A., Assistant Master in Rugby School, and for-
merly Fellow ot Trinity College,. Cambridge.

Aristophanes.

THE CLOUDS. THE FROGS. THE KNIGHTS. PLUTUS.

Euripides.

IPHIGENIA IN TAURIS. THE CYCLOPS. ION.
ELECTRA.

Small Zvo. is. 6d. each; pa^ cover, x«.

*^* Other Plays are in Preparation.

Bttiington'jor Dedotional Sbetizst

EUganUy printed wUh red borders, i6mo, 2s. 6d.

Thomas a KempiSy Of the Imitation of Christ.
Introduction to the Devout Life.

From the French of S. Francis of Sal^ Bishop and Prince of
Geneva.

A Sfwrt and Plain Instruction for the Better

Understanding of the Lord's Supper: to which is annexed, the
Office of the Holy^ Communion, with Proper Helps and Directions.
By Thomas Wilson, D. D. , late Lord Bishop of Sodor and Man.
Complete Edition^ in large type.

The Rule and Exercises of Holy Living.

By Jeremy Taylor, D.D., Bishop of Down and Connor, and
Dromore.

The Rule and Exercises of Holy Dying.

By Jeremy Taylor, D.D., Bishop of Down and Connor, and
Dromore.
The "Holy Living " and the " Holy Dying '* may be had
bound together in One Vol. 5j.

A Practical Treatise concerning Evil Thoughts.

By WiUiam ChUcot, M.A.

The English Poems of George Herbert.

Together with his Collection of Proverbs, entitled "Jacula
Prudentimi."

The Christian Year : Thoughts in Verse for

the Sundays and Holy Days throughout the Year.

Cheap Edition, without the Red Borders.

Thomas a Kempis, Of the Imitation of Christ.

Limp clotk, IS. ; or in cover, 6d.

Bishop Wilsons Holy Communion.

Large type. Limp cloth, is.; or in cover, 6d,

yeremy Taylors Holy Living. Ump doth, u.
yeremy Taylor^ s Holy Dying. Limp doth, is.
Holy Living and Holy Dying, in One Voi, 2s. 6d.

The Christian Year. Limp doth, is., or in caver, 6d.

■^*^.'^V' -'4i'«-->; .:.j^-^^

I

■VI I't __-.._.